ALASKA RULES OF COURT
ALASKA RULES OF PROFESSIONAL CONDUCT
Table of Contents
PREAMBLE: A LAWYER’S RESPONSIBILITIES
SCOPE
CLIENT-LAWYER RELATIONSHIP
Rule
1.1 Competence.
1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer.
1.3 Diligence.
1.4 Communication: Case Status; Informed Consent; Malpractice Insurance Disclosure.
1.5 Fees.
1.6 Confidentiality of Information.
1.7 Conflict of Interest: Current Clients.
1.8 Conflict of Interest: Current Clients: Specific Rules
1.9 Conflict of Interest: Duties to Former Clients.
1.10 Imputation of Conflicts of Interest: General Rule.
1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees.
1.12 Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral.
1.13 Organization as Client.
1.14 Client With Impaired Capacity.
1.15 Safekeeping Property.
1.16 Declining or Terminating Representation.
1.17 Sale of Law Practice.
1.18 Duties to Prospective Client. COUNSELOR
2.1 Advisor.
2.2 [Deleted]
2.3 Evaluation for Use by Third Persons.
2.4 Lawyer Serving as Third-Party Neutral.
ADVOCATE
3.1 Meritorious Claims and Contentions.
3.2 Expediting Litigation.
3.3 Candor Toward the Tribunal.
3.4 Fairness to Opposing Party and Counsel.
3.5 Impartiality and Decorum of the Tribunal.
3.6 Trial Publicity.
3.7 Lawyer as Witness.
3.8 Special Responsibilities of a Prosecutor.
3.9 Advocate in Nonadjudicative Proceedings.
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
4.1 Truthfulness in Statements to Others.
4.2 Communication with Person Represented by Counsel.
4.3 Dealing with Unrepresented Person.
4.4 Respect for Rights of Third Persons
LAW FIRMS AND ASSOCIATIONS
5.1 Responsibilities of a Partners, Managers, and Supervisory Lawyers.
5.2 Responsibilities of a Subordinate Lawyer.
5.3 Responsibilities Regarding Nonlawyer Assistance.
5.4 Professional Independence of a Lawyer.
ALASKA COURT RULES
2
5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law.
5.6 Restriction on Right to Practice.
5.7 Responsibilities Regarding Law-Related Services.
PUBLIC SERVICE
6.1 Voluntary Pro Bono Public Service.
6.2 Accepting Appointments.
6.3 Membership in Legal Services Organization.
6.4 Law Reform Activities Affecting Client Interests.
6.5 Nonprofit and Court-Annexed Limited Legal Services Programs.
INFORMATION ABOUT LEGAL SERVICES
7.1 Communications Concerning a Lawyer’s Services.
7.2 Advertising.
7.3 Solicitation of Clients.
7.4 Communication of Fields of Practice and Specialization.
7.5 Firm Names and Letterheads.
MAINTAINING THE INTEGRITY OF THE PROFESSION
8.1 Bar Admission and Disciplinary Matters.
8.2 Judicial and Legal Officials.
8.3 Reporting Professional Misconduct.
8.4 Misconduct.
8.5 Disciplinary Authority; Choice of Law.
9.1 Definitions.
PROFESSIONAL CONDUCT
3
PREAMBLE: A LAWYER’S RESPONSIBILITIES
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.
As a representative of clients, a lawyer performs various
functions. As advisor, a lawyer provides a client with an
informed understanding of the client’s legal rights and
obligations and explains their practical implications. As
advocate, a lawyer zealously 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 of honest dealings with others. As an evaluator, a
lawyer acts by examining a client’s legal affairs and reporting
about them to the client or to others.
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 2.4. 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.
In all professional functions a lawyer should be
competent, prompt, and diligent. A lawyer should maintain
communication with a client concerning the representation. A
lawyer should keep the confidences and secrets of a client
except so far as disclosure is required or permitted by the
Rules of Professional Conduct or other law.
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.
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.
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.
A lawyer’s responsibilities as a representative of clients,
an officer of the legal system and a public citizen are usually
harmonious. Thus, when an opposing party is well represented,
a lawyer can be a zealous advocate on behalf of a client and at
the same time assume that justice is being done. So also, a
lawyer can be sure that preserving client confidences and
secrets 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.
In the nature of law practice, however, conflicting
responsibilities are encountered. Virtually all difficult ethical
problems arise from conflict between a lawyer’s responsibili-
ties to clients, to the legal system, and to the lawyer’s own
interest in remaining an ethical person while earning a
satisfactory living. 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 zealously 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.
The legal profession is largely 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 largely in the courts.
To the extent that lawyers meet the obligations of their
professional calling, the occasion for government regulation is
obviated. Self-regulation also 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.
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
ALASKA COURT RULES
4
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 indepen-
dence of the profession and the public interest which it serves.
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. The Rules of
Professional Conduct, when properly applied, serve to define
that relationship.
(Amended by SCO 1332 effective January 15, 1999;
rescinded and repromulgated by SCO 1680 effective April
15, 2009)
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.
PROFESSIONAL CONDUCT Rule 1.1
5
CLIENT-LAWYER RELATIONSHIP
Rule 1.1. Competence.
(a) A lawyer shall provide competent representation to a
client. Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for
the representation.
(b) In an emergency, a lawyer may give advice or
assistance in a matter in which the lawyer does not have the
skill ordinarily required or in which referral to or consultation
or association with another lawyer would be impractical;
provided, however, that the assistance shall be limited to that
reasonably necessary in the circumstances and the client shall
be advised of the lawyer’s limited knowledge in the legal field
in which the advice is sought.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1905 effective October 15, 2017)
ALASKA COMMENT
Paragraph (b) of the rule is designed to add a duty to a
lawyer rendering legal services in an emergency situation. The
commentary associated with Model Rule 1.1 suggested that the
requirement of competence might be relaxed in certain
emergency situations. It was felt that such a relaxation should
be made a substantive part of the rule with the added duties
that the assistance shall continue only as long as the emergency
exists and the client be fully advised of the limitations on the
lawyer’s competence.
COMMENT
Legal Knowledge and Skill
In determining whether a lawyer employs the requisite
knowledge and skill in a particular matter, relevant factors
include the relative complexity and specialized nature of the
matter, the lawyer’s general experience, the lawyer’s training
and experience in the field in question, the preparation and
study the lawyer is able to give the matter and whether it is
feasible to refer the matter to, or associate or consult with, a
lawyer of established competence in the field in question. In
many instances, the required proficiency is that of a general
practitioner. Expertise in a particular field of law may be
required in some circumstances.
A lawyer need not necessarily have special training or
prior experience to handle legal problems of a type with which
the lawyer is unfamiliar. A newly admitted lawyer can be as
competent as a practitioner with long experience. Some
important legal skills, such as the analysis of precedent, the
evaluation of evidence and legal drafting, are required in all
legal problems. Perhaps the most fundamental legal skill
consists of determining what kind of legal problems a situation
may involve, a skill that necessarily transcends any particular
specialized knowledge. A lawyer can provide adequate
representation in a wholly novel field through necessary study.
Competent representation can also be provided through the
association of a lawyer of established competence in the field
in question.
In an emergency a lawyer may give advice or assistance in
a matter in which the lawyer does not have the skill ordinarily
required where referral to or consultation or association with
another lawyer would be impractical. Even in an emergency,
however, assistance should be limited to that reasonably
necessary in the circumstances, for ill-considered action under
emergency conditions can jeopardize the client’s interest.
A lawyer may accept representation where the requisite
level of competence can be achieved by reasonable
preparation. This applies as well to a lawyer who is appointed
as counsel for an unrepresented person. See also Rule 6.2.
Thoroughness and Preparation
Competent handling of a particular matter includes
inquiry into and analysis of the factual and legal elements of
the problem, and use of methods and procedures meeting the
standards of competent practitioners. It also includes adequate
preparation. The required attention and preparation are
determined in part by what is at stake; major litigation and
complex transactions ordinarily require more extensive
treatment than matters of lesser complexity and consequence.
An agreement between the lawyer and the client regarding the
scope of the representation may limit the matters for which the
lawyer is responsible. See Rule 1.2(c).
Retaining or Contracting with Other Lawyers
Before a lawyer retains or contracts with other lawyers
outside the lawyer’s own firm to provide or assist in the
provision of legal services to a client, the lawyer should
ordinarily obtain informed consent from the client and must
reasonably believe that the other lawyers’ services will
contribute to the competent and ethical representation of the
client. See also Rules 1.2 (allocation of authority), 1.4
(communication with client), 1.5(e) (fee sharing), 1.6
(confidentiality), and 5.5(a) (unauthorized practice of law).
The reasonableness of the decision to retain or contract with
other lawyers outside the lawyer’s own firm will depend upon
the circumstances, including the education, experience and
reputation of the nonfirm lawyers; the nature of the services
assigned to the nonfirm lawyers; and the legal protections,
professional conduct rules, and ethical environments of the
jurisdictions in which the services will be performed,
particularly relating to confidential information.
When lawyers from more than one law firm are providing
legal services to the client on a particular matter, the lawyers
ordinarily should consult with each other and the client about
the scope of their respective representations and the allocation
of responsibility among them. See Rule 1.2. When making
allocations of responsibility in a matter pending before a
tribunal, lawyers and parties may have additional obligations
that are a matter of law beyond the scope of these Rules.
Maintaining Competence
To maintain the requisite knowledge and skill, a lawyer
should keep abreast of changes in the law and its practice,
Rule 1.2 ALASKA COURT RULES
6
including the benefits and risks associated with relevant
technology, engage in continuing study and education and
comply with all continuing legal education requirements to
which the lawyer is subject.
Rule 1.2. Scope of Representation and Allocation of
Authority Between Client and Lawyer
(a) Subject to paragraphs (c), (d), and (e), a lawyer shall
abide by a client’s decisions concerning the objectives of
representation and 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 offer or accept a settlement. 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, whether the client will testify, and
whether to take an appeal.
(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 consents after consultation.
(1) If a written fee agreement is required by Rule 1.5, the
agreement shall describe the limitation on the representation.
(2) The lawyer shall discuss with the client whether a
written notice of representation should be provided to other
interested parties.
(3) An otherwise unrepresented person to whom limited
representation is being provided or has been provided in
accordance with this rule is considered to be unrepresented for
purposes of Rules 4.2 and 4.3 unless the opposing lawyer
knows of or has been provided with:
(A) a written notice stating that the lawyer is to
communicate only with the limited representation lawyer as to
the subject matter of the limited representation; or
(B) a written notice of the time period during which the
lawyer is to communicate only with the limited representation
lawyer concerning the subject matter of the limited
representation.
(d) Except as provided in paragraph (f), a lawyer shall
not counsel or assist a client to engage 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.
(e) When a lawyer knows that a client expects assistance
not permitted by the rules of professional conduct or other law,
the lawyer shall consult with the client regarding the relevant
limitations on the lawyer’s conduct.
(f) A lawyer may counsel a client regarding Alaska’s
marijuana laws and assist the client to engage in conduct that
the lawyer reasonably believes is authorized by those laws. If
Alaska law conflicts with federal law, the lawyer shall also
advise the client regarding related federal law and policy.
(SCO 1123 effective July 15, 1993; amended by SCO 1544
effective October 15, 2004; rescinded and repromulgated by
SCO 1680 effective April 15, 2009; amended by SCO 1863
effective June 23, 2015)
COMMENT
Allocation of Authority between Client and Lawyer
Paragraph (a) confers upon the client the ultimate
authority to determine the purposes to be served by legal
representation, within the limits imposed by law and the
lawyer’s professional obligations. The decisions specified in
paragraph (a), such as whether to offer or accept a settlement,
must also be made by the client. See Rule 1.4 for the lawyer’s
duty to communicate with the client about such decisions.
With respect to the means by which the client’s objectives are
to be pursued, the lawyer shall consult with the client as
required by Rule 1.4 and may take action impliedly authorized
to carry out the representation.
On occasion, however, a lawyer and a client may disagree
about the means to be used to accomplish the client’s
objectives. Clients normally defer to the special knowledge
and skill of their lawyer with respect to the means to be used to
accomplish their objectives, particularly with respect to
technical, legal and tactical matters. Conversely, lawyers
usually defer to the client regarding such questions as the
expense to be incurred and concern for third persons who
might be adversely affected. Because of the varied nature of
the matters about which a lawyer and client might disagree and
because the actions in question may implicate the interests of a
tribunal or other persons, this Rule does not prescribe how
such disagreements are to be resolved. Other law, however,
may be applicable and should be consulted by the lawyer. The
lawyer should also consult with the client and seek a mutually
acceptable resolution of the disagreement. If such efforts are
unavailing and the lawyer has a fundamental disagreement
with the client, the lawyer may withdraw from the
representation. See Rule 1.16(b)(4). Conversely, the client may
resolve the disagreement by discharging the lawyer. See Rule
1.16(a)(3).
At the outset of a representation, the client may authorize
the lawyer to take specific action on the client’s behalf without
further consultation. Absent a material change in circum-
stances and subject to Rule 1.4, a lawyer may rely on such an
advance authorization. The client may, however, revoke that
authority at any time.
In a case in which the client appears to be suffering
impaired capacity, the lawyer’s duty to abide by the client’s
decisions is to be guided by reference to Rule 1.14.
Independence from Client’s Views or Activities
Legal representation should not be denied to a person
PROFESSIONAL CONDUCT Rule 1.3
7
whose cause is controversial or the subject of popular
disapproval. By the same token, representing a client does not
constitute approval of the client’s views or activities.
Agreements Limiting Scope of Representation
The objectives or scope of services provided by a lawyer
may be limited by agreement or by the terms under which the
lawyer’s services are made available to the client. For
example, a retainer may be for a specifically defined purpose.
Representation provided through a legal aid agency may be
subject to limitations on the types of cases the agency handles.
When a lawyer has been retained by an insurer to represent an
insured, the representation may be limited to matters related to
the insurance coverage. The terms upon which representation
is undertaken may exclude specific objectives or means. Such
limitations may exclude objectives or means that the lawyer
regards as repugnant or imprudent.
Although this Rule affords the lawyer and client
substantial latitude to limit the representation, the limitation
must be reasonable under the circumstances. An agreement for
a limited representation does not exempt a lawyer from the
duty to provide competent representation, although the
limitation is a factor to be considered when determining the
legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation. See Rule 1.1.
All agreements concerning a lawyer’s representation of a
client must accord with the Rules of Professional Conduct and
other law. See, e.g., Rules 1.1, 1.8 and 5.6 and COMMENT to
Rule 1.3, paragraph 3.
Criminal, Fraudulent and Prohibited Transactions
A lawyer is required to give an honest opinion about the
actual consequences that appear likely to result from a client’s
conduct. The fact that a client uses advice in a course of action
that is criminal or fraudulent does not, of itself, make a lawyer
a party to the course of action. However, a lawyer may not
knowingly assist a client in criminal or fraudulent conduct.
There is a critical distinction between presenting an analysis of
legal aspects of questionable conduct and recommending the
means by which a crime or fraud might be committed with
impunity.
When the client’s course of action has already begun and
is continuing, the lawyer’s responsibility is especially delicate.
The lawyer is not permitted to reveal the client’s wrongdoing,
except where permitted by Rule 1.6. However, the lawyer is
required to avoid furthering the purpose, for example, by
suggesting how it might be concealed. A lawyer may not
continue assisting a client in conduct that the lawyer originally
supposes is legally proper but then discovers is criminal or
fraudulent. Withdrawal from the representation, therefore,
may be required and remedial measures may be required by
Rule 4.1.
Where the client is a fiduciary, the lawyer may have
special duties to a beneficiary. See Rule 4.1.
Paragraph (d) applies whether or not the party is a party to
the transaction. However, paragraph (d) does not preclude
undertaking a criminal defense incident to a general retainer
for legal services to a lawful enterprise. The last clause of
paragraph (d) recognizes that determining the validity or
interpretation of a statute or regulation may require a course of
action involving disobedience of the statute or regulation or of
the interpretation placed upon it by governmental authorities.
Rule 1.3. Diligence.
A lawyer shall act with reasonable diligence and
promptness in representing a client.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
A lawyer should pursue a matter on behalf of a client
despite opposition, obstruction, or personal inconvenience to
the lawyer, and take whatever lawful and ethical measures are
required to vindicate a client’s cause or endeavor. A lawyer
must also act with commitment and dedication to the interests
of the client and with zeal in advocacy upon the client’s behalf.
A lawyer is not bound, however, to press for every advantage
that might be realized for a client. For example, a lawyer may
have authority to exercise professional discretion in
determining the means by which a matter should be pursued.
See Rule 1.2. The lawyer’s duty to act with reasonable
diligence does not require the use of offensive tactics or
preclude the treating of all persons involved in the legal
process with courtesy and respect.
A lawyer’s work-load must be controlled so that each
matter can be handled competently.
Perhaps no professional shortcoming is more widely
resented than procrastination. A client’s interests often can be
adversely affected by the passage of time or the change of
conditions; in extreme instances, as when a lawyer overlooks a
statute of limitations, the client’s legal position may be
destroyed. Even when the client’s interests are not affected in
substance, however, unreasonable delay can cause a client
needless anxiety and undermine confidence in the lawyer’s
trustworthiness. A lawyer’s duty to act with reasonable
promptness, however, does not preclude the lawyer from
agreeing to a reasonable request for a postponement that will
not prejudice the lawyer’s client.
Unless the relationship is terminated as provided in Rule
1.16, a lawyer should carry through to conclusion all matters
undertaken for a client. If a lawyer’s employment is limited to
a specific matter, the relationship terminates when the matter
has been resolved. If a lawyer has served a client over a
substantial period in a variety of matters, the client sometimes
may assume that the lawyer will continue to serve on a
continuing basis unless the lawyer gives notice of withdrawal.
Doubt about whether a client-lawyer relationship still exists
should be clarified by the lawyer, preferably in writing, so that
the client will not mistakenly suppose the lawyer is looking
after the client’s affairs when the lawyer has ceased to do so.
For example, if a lawyer has handled a judicial or
administrative proceeding that produced a result adverse to the
Rule 1.4 ALASKA COURT RULES
8
client and the lawyer and the client have not agreed that the
lawyer will handle the matter on appeal, the lawyer must
consult with the client about the possibility of appeal before
relinquishing responsibility for the matter. See Rule 1.4(a)(2).
Whether the lawyer is obligated to prosecute the appeal for the
client depends on the scope of the representation the lawyer
has agreed to provide to the client. See Rule 1.2.
To prevent neglect of client matters in the event of a sole
practitioner’s death or disability, the duty of diligence may
require that each sole practitioner prepare a plan, in conformity
with applicable rules, that designates another competent lawyer
to review client files, notify each client of the lawyer’s death or
disability, and determine whether there is a need for immediate
protective action. Cf. Alaska Bar Rule 31 (concerning
appointment of trustee counsel to protect a client’s interest).
Rule 1.4. Communication: Case Status; Informed
Consent; Malpractice Insurance Disclosure.
(a) A lawyer shall keep a client reasonably informed
about the status of a matter undertaken on the client’s behalf
and promptly comply with reasonable requests for information.
A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
(b) A lawyer shall promptly inform the client of any
decision or circumstance that requires the client’s informed
consent, unless the client has already made an informed
decision on the matter in previous discussions. Until the client
has given the required informed consent, a lawyer shall refrain
from taking binding action on the matter.
(c) A lawyer shall inform an existing client in writing if
the lawyer does not have malpractice insurance of at least
$100,000 per claim and $300,000 annual aggregate and shall
inform the client in writing at any time the lawyer’s
malpractice insurance drops below these amounts or the
lawyer’s malpractice insurance is terminated. A lawyer shall
maintain a record of these disclosures for six years from the
termination of the client’s representation. This paragraph does
not apply to lawyers employed by the government as salaried
employees or to lawyers employed as in-house counsel.
(SCO 1123 effective July 15, 1993; amended by SCO 1329
effective January 15, 1999; by SCO 1370 effective April 15,
2000; rescinded and repromulgated by SCO 1680 effective
April 15, 2009)
ALASKA COMMENT
Paragraph (a) is a combination of paragraphs (a) and (b)
from the former rule. Paragraph (b) is from the American Bar
Association COMMENT.
Lawyers may use the following language in making the
disclosures required by this rule:
(1) no insurance: “Alaska Rule of Professional Conduct
1.4(c) requires that you, as the client, be informed in writing if
a lawyer does not have malpractice insurance of at least
$100,000 per claim and $300,000 annual aggregate and if, at
any time, a lawyer’s malpractice insurance drops below these
amounts or a lawyer’s malpractice insurance coverage is
terminated. You are therefore advised that (name of attorney or
firm) does not have malpractice insurance coverage of at least
$100,000 per claim and $300,000 annual aggregate.”
(2) insurance below amounts: “Alaska Rule of
Professional Conduct 1.4(c) requires that you, as the client, be
informed in writing if a lawyer does not have malpractice
insurance of at least $100,000 per claim and $300,000 annual
aggregate and if, at any time, a lawyer’s malpractice insurance
drops below these amounts or a lawyer’s malpractice insurance
coverage is terminated. You are therefore advised that (name
of attorney or firm)’s malpractice insurance has dropped below
at least $100,000 per claim and $300,000 annual aggregate.”
(3) insurance terminated: “Alaska Rule of Professional
Conduct 1.4(c) requires that you, as the client, be informed in
writing if a lawyer does not have malpractice insurance of at
least $100,000 per claim and $300,000 annual aggregate and if,
at any time, a lawyer’s malpractice insurance drops below
these amounts or a lawyer’s malpractice insurance coverage is
terminated. You are therefore advised that (name of attorney or
firm)’s malpractice insurance has been terminated.”
COMMENT
Reasonable communication between the lawyer and the
client is necessary for the client effectively to participate in the
representation.
Communicating with Client
If these Rules require that a particular decision about the
representation be made by the client, paragraph (b) requires
that the lawyer promptly consult with and secure the client’s
consent prior to taking binding action unless prior discussions
with the client have resolved what action the client wants the
lawyer to take. For example, a lawyer who receives from
opposing counsel an offer of settlement in a civil controversy
or a proffered plea bargain in a criminal case must promptly
inform the client of its substance unless the client has
previously indicated that the proposal will be acceptable or
unacceptable or has authorized the lawyer to accept or to reject
the offer. See Rule 1.2(a).
Paragraph (a) requires the lawyer to reasonably consult
with the client about the means to be used to accomplish the
client’s objectives. In some situations – depending on both the
importance of the action under consideration and the feasibility
of consulting with the client – this duty will require
consultation prior to taking action. In other circumstances,
such as during a trial when an immediate decision must be
made, the exigency of the situation may require the lawyer to
act without prior consultation. In such cases the lawyer must
nonetheless act reasonably to inform the client of actions the
lawyer has taken on the client’s behalf. Additionally,
paragraph (a) requires that the lawyer keep the client
reasonably informed about the status of the matter, such as
significant developments affecting the timing or the substance
of the representation.
PROFESSIONAL CONDUCT Rule 1.5
9
A lawyer’s regular communication with clients will
minimize the occasions on which a client will need to request
information concerning the representation. When a client
makes a reasonable request for information, however,
paragraph (a) requires prompt compliance with the request. If a
prompt response is not feasible, the lawyer or a member of the
lawyer’s staff should acknowledge receipt of the request and
advise the client when a response may be expected.
Explaining Matters
The client should have sufficient information to
participate intelligently in decisions concerning the objectives
of the representation and the means by which they are to be
pursued, to the extent the client is willing and able to do so.
Adequacy of communication depends in part on the kind of
advice or assistance that is involved. For example, when there
is time to explain a proposal made in a negotiation, the lawyer
should review all important provisions with the client before
proceeding to an agreement. In litigation a lawyer should
explain the general strategy and prospects of success and
ordinarily should consult the client on tactics that are likely to
result in significant expense or to injure or coerce others. On
the other hand, a lawyer ordinarily will not be expected to
describe trial or negotiation strategy in detail. The guiding
principle is that the lawyer should fulfill reasonable client
expectations for information consistent with the duty to act in
the client’s best interests, and the client’s overall requirements
as to the character of representation. In certain circumstances,
such as when a lawyer asks a client to consent to a
representation potentially affected by a conflict of interest, the
client must give informed consent, as defined in Rule 9.1(g).
Ordinarily, the information to be provided is that
appropriate for a client who is a comprehending and responsi-
ble adult. However, fully informing the client according to this
standard may be impracticable, for example, where the client is
a child or suffers from impaired capacity. See Rule 1.14. When
the client is an organization or group, it is often impossible or
inappropriate to inform every one of its members about its
legal affairs; ordinarily, the lawyer should address communica-
tions to the appropriate officials of the organization. See Rule
1.13. Where many routine matters are involved, a system of
limited or occasional reporting may be arranged with the
client.
Withholding Information
In some circumstances, a lawyer may be justified in
delaying transmission of information when the client would be
likely to react imprudently to an immediate communication.
Thus, a lawyer might withhold a psychiatric diagnosis of a
client when the examining psychiatrist indicates that disclosure
would harm the client. A lawyer may not withhold information
to serve the lawyer’s own interest or convenience or the
interests or convenience of another person. Rules or court
orders governing litigation may provide that information
supplied to a lawyer may not be disclosed to the client. Rule
3.4(c) directs compliance with such rules or orders.
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, 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) If a fee will exceed $1000, the basis or rate of the fee
shall be communicated to the client in a written fee agreement
before or within a reasonable time after commencing the
representation. This written fee agreement shall describe the
scope of the representation and shall include the disclosure
required under Rule 1.4(c). In a case involving litigation, the
lawyer shall notify the client in the written fee agreement that
the client may be liable for the opposing party’s costs, fees, or
expenses if the client is not the prevailing party.
(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 fee agreement that is in whole or part contingent shall
be in writing 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 expenses are to be deducted before
or after the contingent fee is calculated. In addition, the written
agreement shall include the disclosure required by Rule 1.4(c)
and shall state any costs, fees, or expenses for which the client
may be liable, either to the lawyer or to the opposing 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 establishment or modification of alimony or
support, or property settlement in lieu thereof; or
Rule 1.5 ALASKA COURT RULES
10
(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 contribution of
each firm or, by written agreement with the client, each firm
assumes joint responsibility for the representation;
(2) the client agrees to the participation of each firm,
including the share each firm will receive, and the participation
is confirmed to the client in writing; and
(3) the total fee is reasonable.
(f) A lawyer should seek to avoid controversies over
fees with clients and should attempt to resolve amicably any
differences on the subject.
(g) For purposes of sections (b) and (c) of this rule, the
word “client,” in addition to the definition contained in Rule
9.1, also includes any person or entity responsible for paying
the fees for professional services rendered by a lawyer.
(SCO 1123 effective July 15, 1993; amended by SCO 1330
effective January 15, 1999; rescinded and repromulgated by
SCO 1680 effective April 15, 2009)
ALASKA COMMENT
The words “if apparent to the client” were deleted from
Model Rule 1.5(a)(2). An attorney should be allowed to
increase his or her fees if there is a likelihood that the
representation will preclude other employment. This is true
regardless of whether the likelihood is apparent to the client.
The Committee concluded that advice to the client
concerning potential liability for costs, attorney’s fees and
other expenses should be specifically set out in the written fee
agreement in order that the client might be fully informed.
Lawyers may use the following language to notify the
client of the client’s potential liability for costs, fees or
expenses if the client is not the prevailing party in litigation:
“Under the law, you may have to pay some or all of the costs,
fees and expenses of your opponents in your case if you don’t
win your case or if you reject an offer that turns out to be better
than your results at trial.”
COMMENT
Reasonableness of Fee and Expenses
Paragraph (a) requires that lawyers charge fees that are
reasonable under the circumstances. The factors specified in
(1) through (8) are not exclusive. Nor will each factor be
relevant in each instance. Paragraph (a) also requires that
expenses for which the client will be charged must be
reasonable. A lawyer may seek reimbursement for the cost of
services performed in-house, such as copying, or for other
expenses incurred in-house, such as telephone charges, either
by charging a reasonable amount to which the client has agreed
in advance or by charging an amount that reasonably reflects
the cost incurred by the lawyer. A contingent fee arrangement
is prohibited in domestic relations cases only with regard to
proceedings to establish or modify alimony, child support, and
property settlement in lieu of alimony or child support, and not
to proceedings initiated for the collection of amounts in
default.
Basis or Rate of Fee
When the lawyer has regularly represented a client, they
ordinarily will have evolved an understanding concerning the
basis or rate of the fee and the expenses for which the client
will be responsible. In a new client-lawyer relationship,
however, an understanding as to fees and expenses must be
promptly established. Generally, it is desirable to furnish the
client with at least a simple memorandum or copy of the
lawyer’s customary fee arrangements that states the general
nature of the legal services to be provided, the basis, rate or
total amount of the fee and whether and to what extent the
client will be responsible for any costs, expenses, or
disbursements in the course of the representation. A written
statement concerning the terms of the engagement reduces the
possibility of misunderstanding.
Contingent fees, like any other fees, are subject to the
reasonableness standard of paragraph (a) of this Rule. In
determining whether a particular contingent fee is reasonable,
or whether it is reasonable to charge any form of contingent
fee, a lawyer must consider the factors that are relevant under
the circumstances. Applicable law may impose limitations on
contingent fees, such as a ceiling on the percentage allowable,
or may require a lawyer to offer clients an alternative basis for
the fee. Applicable law also may apply to situations other than
a contingent fee, for example, government regulations
regarding fees in certain tax matters.
Terms of Payment
A lawyer may require advance payment of a fee, but is
obliged to return any unearned portion. See Rule 1.16(d). A
lawyer may accept property in payment for services, such as an
ownership interest in an enterprise, providing this does not
involve acquisition of a proprietary interest in the cause of
action or subject matter of the litigation contrary to Rule 1.8
(i). However, a fee paid in property instead of money may be
subject to the requirements of Rule 1.8(a) because such fees
often have the essential qualities of a business transaction with
the client.
An agreement may not be made whose terms might
induce the lawyer improperly to curtail services for the client
or perform them in a way contrary to the client’s interest. For
example, a lawyer should not enter into an agreement whereby
services are to be provided only up to a stated amount when it
is foreseeable that more extensive services probably will be
required, unless the situation is adequately explained to the
client. Otherwise, the client might have to bargain for further
assistance in the midst of a proceeding or transaction.
However, it is proper to define the extent of services in light of
the client’s ability to pay. A lawyer should not exploit a fee
arrangement based primarily on hourly charges by using
PROFESSIONAL CONDUCT Rule 1.6
11
wasteful procedures.
Prohibited Contingent Fees
Paragraph (d) prohibits a lawyer from charging a
contingent fee in a domestic relations matter when payment is
contingent upon the securing of a divorce or upon the amount
of alimony or support or property settlement to be obtained.
This provision does not preclude a contract for a contingent fee
for legal representation in connection with the recovery of
post-judgment balances due under support, alimony, or other
financial orders because such contracts do not implicate the
same policy concerns.
Division of Fee
A division of fee is a single billing to a client covering the
fee of two or more lawyers who are not in the same firm. A
division of fee facilitates association of more than one lawyer
in a matter in which neither alone could serve the client as
well, and most often is used when the fee is contingent and the
division is between a referring lawyer and a trial specialist.
Paragraph (e) permits the lawyers to divide a fee either on the
basis of he proportion of services they render or if each lawyer
assumes responsibility for the representation as a whole. In
addition, the client must agree to the arrangement, including
the share that each lawyer is to receive, and the agreement
must be confirmed in writing. Contingent fee agreements must
be in a writing signed by the client and must otherwise comply
with paragraph (c) of this Rule. Joint responsibility for the
representation entails financial and ethical responsibility for
the representation as if the lawyers were associated in a
partnership. A lawyer should only refer a matter to a lawyer
whom the referring lawyer reasonably believes is competent to
handle the matter. See Rule 1.1.
Paragraph (e) does not prohibit or regulate division of fees
to be received in the future for work done when lawyers were
previously associated in a law firm.
Disputes over Fees
If a procedure has been established for resolution of fee
disputes, such as an arbitration or mediation procedure
established by the bar, the lawyer must comply with the
procedure when it is mandatory, and, even when it is
voluntary, the lawyer should conscientiously consider
submitting to it. Law may prescribe a procedure for
determining a lawyer’s fee, for example, in representation of
an executor or administrator, a class or a person entitled to a
reasonable fee as part of the measure of damages. The lawyer
entitled to such a fee and a lawyer representing another party
concerned with the fee should comply with the prescribed
procedure.
Rule 1.6. Confidentiality of Information
(a) A lawyer shall not reveal a client’s confidence or
secret unless the client gives informed consent, except for
disclosures that are impliedly authorized in order to carry out
the representation and disclosures permitted by paragraph (b)
below or Rule 3.3. For purposes of this rule, “confidence”
means information protected by the attorney-client privilege
under applicable law, and “secret” means other information
gained in the professional relationship if the client has
requested it be held confidential or if it is reasonably
foreseeable that disclosure of the information would be
embarrassing or detrimental to the client. In determining
whether information relating to representation of a client is
protected from disclosure under this rule, the lawyer shall
resolve any uncertainty about whether such information can be
revealed against revealing the information.
(b) A lawyer may reveal a client’s confidence or secret to
the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain:
(A) death;
(B) substantial bodily harm; or
(C) wrongful execution or incarceration of another;
(2) to prevent the client from committing a crime or
fraud that is reasonably certain to result in substantial injury to
the financial interests or property of another and in furtherance
of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate, or rectify substantial injury to
the financial interests or property of another that is reasonably
certain to result or has resulted from the client’s commission of
a crime or fraud in furtherance of which the client has used the
lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance
with these Rules;
(5) 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
(6) to comply with other law or a court order.
(c) A lawyer must act competently to safeguard a client’s
confidences and secrets against unauthorized access, or against
inadvertent or unauthorized disclosure by the lawyer, by other
persons who are participating in the representation of the
client, by any other persons who are subject to the lawyer’s
supervision, or by others involved in transferring or storing
client confidences and secrets. This duty includes guarding
against unauthorized access to a client’s confidences and
secrets. See Rules 1.1, 5.1, and 5.3. A client may give
informed consent to forgo security measures that would
otherwise be required by this Rule. When transmitting or
storing information that includes a client’s confidence or
secret, the lawyer must take reasonable precautions to prevent
this information from coming into the hands of unintended
recipients.
(SCO 1123 effective July 15, 1993; amended by SCO 1332
effective January 15, 1999; rescinded and repromulgated by
Rule 1.6 ALASKA COURT RULES
12
SCO 1680 effective April 15, 2009; amended by SCO 1905
effective October 15, 2017; and by SCO 1984 effective
October 5, 2022)
ALASKA COMMENT
The Court decided to continue Alaska’s amendment to
this rule to tie the lawyer’s confidentiality obligation to a
“confidence” or “secret” of the client. The Committee
concluded the language used in Model Rule 1.6 (“information”
relating to representation of a client) was excessively broad.
The terms “confidence” and “secret” are defined in the
amended rule in substantively the same way as those terms
were defined in DR 4-101(A) of the ABA Model Code of
Professional Responsibility. The Committee expects that court
decisions interpreting “confidence” and “secret” under DR 4-
101(A) will be persuasive authority for interpreting the
amended Alaska rule.
The final sentence of paragraph (a) has been added to
require that a lawyer approach any decision about disclosing
confidences or secrets of a client from the standpoint that the
information is generally protected from disclosure.
In paragraph (b)(1)(C), the court included an additional
limited exception to the normal rule requiring lawyers to
preserve the confidences and secrets of their clients. This
provision is modeled on the similar Massachusetts rule; its
core purpose is to permit a lawyer to reveal confidential
information in the specific situation in which that information
discloses that an innocent person has been convicted of a crime
and has been sentenced to imprisonment or execution.
The lawyer’s decision to disclose information under this
rule is governed by objectively reasonable standards (see Rule
9.1(n) and (o)) and by all the facts and circumstances of which
the lawyer is aware or reasonably should be aware at the time
the decision is made.
Paragraph (c) is taken from the commentary to the ABA
version of the rules. The Committee created paragraph (c)
because the Committee concluded that standards of pro-
fessional conduct subject to enforcement through disciplinary
proceedings should be stated in the text of the Rules rather
than in commentary.
COMMENT
This Rule governs the disclosure by a lawyer confidences
and secrets of a client during the lawyer’s representation of the
client. See Rule 1.18 for the lawyer’s duties with respect to
information provided to the lawyer by a prospective client,
Rule 1.9(c)(2) for the lawyer’s duty not to reveal confidences
and secrets of a former client, and Rules 1.8(b) and 1.9(c)(1)
for the lawyer’s duties with respect to the use of such informa-
tion to the disadvantage of clients and former clients.
A fundamental principle in the client-lawyer relationship
is that, in the absence of the client’s informed consent, the
lawyer must not reveal a client’s confidences and secrets. See
Rule 9.1(g) for the definition of informed consent. This
contributes to the trust that is the hallmark of the client-lawyer
relationship. The client is thereby encouraged to seek legal
assistance and to communicate fully and frankly with the
lawyer even as to embarrassing or legally damaging subject
matter. The lawyer needs this information to represent the
client effectively and, if necessary, to advise the client to
refrain from wrongful conduct. Almost without exception,
clients come to lawyers in order to determine their rights and
to ascertain what conduct is legal and correct.
The principle of client-lawyer confidentiality is given
effect by related bodies of law: the attorney-client privilege,
the work product doctrine and the rule of confidentiality
established in the Rules of Professional Conduct. The attorney-
client privilege and work-product doctrine apply in judicial and
other proceedings in which a lawyer may be called as a witness
or otherwise required to produce evidence concerning a client.
The rule of client-lawyer confidentiality also applies in situa-
tions other than those where evidence is sought from the
lawyer through compulsion of law. The confidentiality rule, for
example, applies not only to matters communicated in
confidence by the client but also to all client secrets. A lawyer
may not disclose such information except as authorized or
required by the Rules of Professional Conduct or other law. A
determination that disclosure of client information is permitted
by the crime-fraud exception to the ethics rule does not
necessarily lead to the same result under the crime-fraud
exception to the attorney-client privilege. See also Scope.
Paragraph (a) prohibits a lawyer from revealing
confidences and secrets of a client. This prohibition also
applies to disclosures by a lawyer that do not in themselves
reveal protected information but could reasonably lead to the
discovery of such information by a third person. A lawyer’s
use of a hypothetical to discuss issues relating to the
representation is permissible so long as there is no reasonable
likelihood that the listener will be able to ascertain the identity
of the client or the situation involved.
Authorized Disclosure
Except to the extent that the client’s instructions or special
circumstances limit that authority, a lawyer is impliedly
authorized to make disclosures about a client when appropriate
in carrying out the representation. In some situations, for
example, a lawyer may be impliedly authorized to admit a fact
that cannot properly be disputed or to make a disclosure that
facilitates a satisfactory conclusion to a matter. Lawyers in a
firm may, in the course of the firm’s practice, disclose to each
other confidences and secrets of a client of the firm, unless the
client has instructed that particular information be confined to
specified lawyers.
Disclosure Adverse to Client
Although the public interest is usually best served by a
strict rule requiring lawyers to preserve the confidences and
secrets of their clients, the confidentiality rule is subject to
limited exceptions. Paragraph (b)(1) recognizes the overriding
value of life and physical integrity and permits disclosure
reasonably necessary to prevent reasonably certain death or
substantial bodily harm. Such harm is reasonably certain to
occur if it will be suffered imminently or if there is a present
and substantial threat that a person will suffer such harm at a
PROFESSIONAL CONDUCT Rule 1.6
13
later date if the lawyer fails to take action necessary to
eliminate the threat. Thus, a lawyer who knows that a client
has accidentally discharged toxic waste into a town’s water
supply may reveal this information to the authorities if there is
a present and substantial risk that a person who drinks the
water will contract a life-threatening or debilitating disease and
the lawyer’s disclosure is necessary to eliminate the threat or
reduce the number of victims.
Paragraph (b)(2) is a limited exception to the rule of
confidentiality that permits the lawyer to reveal information to
the extent necessary to enable affected persons or appropriate
authorities to prevent the client from committing a crime or
fraud, as defined in Rule 1.0(d), that is reasonably certain to
result in substantial injury to the financial or property interests
of another and in furtherance of which the client has used or is
using the lawyer’s services. Such a serious abuse of the client-
lawyer relationship by the client forfeits the protection of this
Rule. The client can, of course, prevent such disclosure by
refraining from the wrongful conduct. Although paragraph
(b)(2) does not require the lawyer to reveal the client’s
misconduct, the lawyer may not counsel or assist the client in
conduct the lawyer knows is criminal or fraudulent. See Rule
1.2(d). See also Rule 1.16 with respect to the lawyer’s
obligation or right to withdraw from the representation of the
client in such circumstances, and Rule 1.13(c), which permits
the lawyer, where the client is an organization, to reveal
information relating to the representation in limited
circumstances.
Paragraph (b)(3) addresses the situation in which the
lawyer does not learn of the client’s crime or fraud until after it
has been consummated. Although the client no longer has the
option of preventing disclosure by refraining from the
wrongful conduct, there will be situations in which the loss
suffered by the affected person can be prevented, rectified or
mitigated. In such situations, the lawyer may disclose client
confidences and secrets to the extent necessary to enable the
affected persons to prevent or mitigate reasonably certain
losses or to attempt to recoup their losses. Paragraph (b)(3)
does not apply when a person who has committed a crime or
fraud thereafter employs a lawyer for representation concern-
ing that offense.
A lawyer’s confidentiality obligations do not preclude a
lawyer from securing confidential legal advice about the
lawyer’s personal responsibility to comply with these Rules. In
most situations, disclosing information to secure such advice
will be impliedly authorized for the lawyer to carry out the
representation. Even when the disclosure is not impliedly
authorized, paragraph (b)(2) permits such disclosure because
of the importance of a lawyer’s compliance with the Rules of
Professional Conduct. To the extent practicable, a lawyer
should use hypothetical facts when seeking this legal advice.
Where a legal claim or disciplinary charge alleges
complicity of the lawyer in a client’s conduct or other
misconduct of the lawyer involving representation of the
client, the lawyer may respond to the extent the lawyer
reasonably believes necessary to establish a defense. The same
is true with respect to a claim involving the conduct or
representation of a former client. Such a charge can arise in a
civil, criminal, disciplinary, or other proceeding and can be
based on a wrong allegedly committed by the lawyer against
the client or on a wrong alleged by a third person, for example,
a person claiming to have been defrauded by the lawyer and
client acting together. The lawyer’s right to respond arises
when an assertion of such complicity or other misconduct has
been made. Paragraph (b)(5) does not require the lawyer to
await the commencement of an action or proceeding that
charges misconduct, so the defense may be established by
responding directly to a third party who has made such an
assertion. The right to defend also applies, of course, when a
proceeding has been commenced.
A lawyer entitled to a fee is permitted by paragraph (b)(5)
to prove the services rendered in an action to collect it. This
aspect of the rule expresses the principle that the beneficiary of
a fiduciary relationship may not exploit it to the detriment of
the fiduciary.
Other law may require that a lawyer disclose information
about a client. Whether such a law supersedes Rule 1.6 is a
question of law beyond the scope of these Rules. When
disclosure of confidences and secrets appears to be required by
other law, the lawyer must discuss the matter with the client to
the extent required by Rule 1.4. If, however, the other law
supersedes this Rule and requires disclosure, paragraph (b)(6)
permits the lawyer to make such disclosures as are necessary to
comply with the law.
A lawyer may be ordered to reveal confidences and
secrets of a client by a court or by another tribunal or
governmental entity claiming authority pursuant to other law to
compel the disclosure. Absent informed consent of the client to
do otherwise, the lawyer should assert on behalf of the client
all nonfrivolous claims that the order is not authorized by other
law or that the information sought is protected against
disclosure by the attorney-client privilege or other applicable
law. In the event of an adverse ruling, the lawyer must consult
with the client about the possibility of appeal to the extent
required by Rule 1.4. Unless review is sought, however,
paragraph (b)(6) permits the lawyer to comply with the court’s
order.
Paragraph (b) permits disclosure only to the extent the
lawyer reasonably believes the disclosure is necessary to
accomplish one of the purposes specified. Where practicable,
the lawyer should first seek to persuade the client to take
suitable action to obviate the need for disclosure. In any case, a
disclosure adverse to the client’s interest should be no greater
than the lawyer reasonably believes necessary to accomplish
the purpose. If the disclosure will be made in connection with a
judicial proceeding, the lawyer should ask the tribunal to limit
access to the information to the tribunal or other persons
having a need to know it and appropriate protective orders or
other arrangements should be sought by the lawyer to the
fullest extent practicable.
Detection of Conflicts of Interest
This Rule recognizes that lawyers in different firms may
need to disclose limited information to each other to detect and
resolve conflicts of interest, such as when a lawyer is
Rule 1.6 ALASKA COURT RULES
14
considering an association with another firm, two or more
firms are considering a merger, or a lawyer is considering the
purchase of a law practice. See Rule 1.17. Under these
circumstances, lawyers and law firms are permitted to disclose
limited information, but only once substantive discussions
regarding the new relationship have occurred. Any such
disclosure should ordinarily include no more than the identity
of the persons and entities involved in a matter, a brief
summary of the general issues involved, and information about
whether the matter has terminated. Even this limited
information, however, should be disclosed only to the extent
reasonably necessary to detect and resolve conflicts of interest
that might arise from the possible new relationship. Moreover,
the disclosure of any information is prohibited if it would
compromise the attorney-client privilege or otherwise
prejudice the client (e.g., the fact that a corporate client is
seeking advice on a corporate takeover that has not been
publicly announced; that a person has consulted a lawyer about
the possibility of divorce before the person’s intentions are
known to the person’s spouse; or that a person has consulted a
lawyer about a criminal investigation that has not led to a
public charge). Under those circumstances, paragraph (a)
prohibits disclosure unless the client or former client gives
informed consent. A lawyer’s fiduciary duty to the lawyer’s
firm may also govern a lawyer’s conduct when exploring an
association with another firm and is beyond the scope of these
Rules.
Any information disclosed pursuant to this Rule may be
used or further disclosed only to the extent necessary to detect
and resolve conflicts of interest. This Rule does not restrict the
use of information acquired by means independent of any
disclosure pursuant to this Rule. This Rule also does not affect
the disclosure of information within a law firm when the
disclosure is otherwise authorized, such as when a lawyer in a
firm discloses information to another lawyer in the same firm
to detect and resolve conflicts of interest that could arise in
connection with undertaking a new representation.
Disclosures Otherwise Required or Authorized
Paragraph (b) permits but does not require the disclosure
of confidences and secrets of a client to accomplish the
purposes specified in paragraphs (b)(1) through (b)(6). In
exercising the discretion conferred by this Rule, the lawyer
may consider such factors as the nature of the lawyer’s
relationship with the client and with those who might be
injured by the client, the lawyer’s own involvement in the
transaction and factors that may extenuate the conduct in
question. A lawyer’s decision not to disclose as permitted by
paragraph (b) does not violate this Rule. Disclosure may be
required, however, by other Rules. Some Rules require
disclosure only if such disclosure would be permitted by
paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3,
on the other hand, requires disclosure in some circumstances
regardless of whether such disclosure is permitted by this Rule.
See Rule 3.3(c).
In various circumstances, a lawyer is permitted or
required to disclose client confidences and secrets. See, for
example, Rules 2.3, 3.3, and 4.1. In addition to these
provisions, a lawyer may be obligated or permitted by other
provisions of law to give information about a client. Whether
another provision of law supersedes or augments Rule 1.6 is a
matter of interpretation beyond the scope of these Rules.
The attorney-client privilege is defined differently in
various jurisdictions. If a lawyer is called as a witness to give
testimony concerning a client, absent waiver by the client,
paragraph (a) requires the lawyer to invoke the privilege when
it is applicable. The lawyer must comply with the final orders
of a court or other tribunal of competent jurisdiction requiring
the lawyer to give information about the client.
Acting Competently to Preserve Confidentiality
Paragraph (c) requires a lawyer to act competently to
safeguard client confidences and secrets against unauthorized
access by third parties and against inadvertent or unauthorized
disclosure by the lawyer or other persons who are participating
in the representation of the client or who are subject to the
lawyer’s supervision. See Rules 1.1, 5.1, 5.3. The unauthorized
access to, or the inadvertent or unauthorized disclosure of,
information relating to the representation of a client does not
constitute a violation of paragraph (c) if the lawyer has made
reasonable efforts to prevent the access or disclosure. Factors
to be considered in determining the reasonableness of the
lawyer’s efforts include, but are not limited to, the sensitivity
of the information, the likelihood of disclosure if additional
safeguards are not employed, the cost of employing additional
safeguards, the difficulty of implementing the safeguards, and
the extent to which the safeguards adversely affect the
lawyer’s ability to represent clients (e.g., by making a device
or important piece of software excessively difficult to use).
The duty of safeguarding communications described in Rule
1.6(c) does not require that the lawyer use special security
measures if the method of communication affords a reasonable
expectation of privacy. Special circumstances, however, may
warrant special precautions. Factors to be considered in
determining the reasonableness of the lawyer’s expectation of
confidentiality include the sensitivity of the information and
the extent to which the privacy of the communication is
protected by law or by a confidentiality agreement. A client
may require the lawyer to implement special security measures
not required by this Rule or may give informed consent to the
use of a means of communication that would otherwise be
prohibited by this Rule. Whether a lawyer may be required to
take additional steps in order to comply with other law, such as
state and federal laws that govern data privacy, is beyond the
scope of these Rules.
Withdrawal
If the lawyer’s services will be used by the client in
materially furthering a course of criminal or fraudulent
conduct, the lawyer must withdraw, as stated in Rule
1.16(a)(1). After withdrawal the lawyer is required to refrain
from making disclosure of the client’s confidences and secrets,
except as otherwise permitted by Rule 1.6. Neither this Rule
nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from
giving notice of the fact of withdrawal, and the lawyer may
also withdraw or disaffirm any opinion, document, affirmation,
or the like. Where the client is an organization, the lawyer may
be in doubt whether contemplated conduct will actually be
PROFESSIONAL CONDUCT Rule 1.7
15
carried out by the organization. Where necessary to guide
conduct in connection with this Rule, the lawyer may make
inquiry within the organization as indicated in Rule 1.13(b).
The duty of safeguarding communications described in
Rule 1.6(c) does not require that the lawyer use special
security measures if the method of communication affords a
reasonable expectation of privacy. Special circumstances,
however, may warrant special precautions. Factors to be
considered in determining the reasonableness of the lawyer’s
expectation of confidentiality include the sensitivity of the
information and the extent to which the privacy of the
communication is protected by law or by a confidentiality
agreement. A client may require the lawyer to implement
special security measures not required by this Rule or may give
informed consent to the use of a means of communication that
would otherwise be prohibited by this Rule.
Former Client
The duty of confidentiality continues after the client-
lawyer relationship has terminated. See Rule 1.9(c)(2). See
Rule 1.9(c)(1) for the prohibition against using confidences
and secrets to the disadvantage of a former client.
LAW REVIEW COMMENTARIES
“Guilty But Mentally Ill: The Ethical Dilemma of Mental Illness as a Tool
of the Prosecution,” 32 Alaska L. Rev. 1 (2015).
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 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.
(c) A lawyer shall act with reasonable diligence in
determining whether a conflict of interest, as described in
paragraphs (a) and (b) of this rule or Rules 1.8, 1.9, or 1.10,
exists.
(d) For purposes of this rule, the term “client” does not
include unidentified members of a class in a class action or
identified members of a class when individual recovery is
expected to be de minimis.
(SCO 1123 effective July 15, 1993; amended by SCO 1335
effective January 15, 1999; and rescinded and repromulgated
by SCO 1680 effective April 15, 2009; amended by SCO 1984
effective October 5, 2022)
ALASKA COMMENT
Substantial delay in litigation may occur as a result of a
conflict of interest unless prompt efforts are made to discover
any such conflicts. A lawyer should take all reasonable
measures to determine whether or not a conflict of interest
exists under Rule 1.7, 1.8, 1.9 or 1.10 before undertaking
representation. If facts which would lead one to believe a
conflict of interest exists come to the attention of the lawyer
after representation has begun, the lawyer should determine
whether a conflict does exist with all reasonable diligence.
COMMENT
General Principles
Loyalty and independent judgment are essential elements
in the lawyer’ relationship to a client. Concurrent conflicts of
interest can arise from the lawyer’s responsibilities to another
client, a former client, or a third person or from the lawyer’s
own interests. For specific Rules regarding certain concurrent
conflicts of interest, see Rule 1.8. For former client conflicts of
interest, see Rule 1.9. For conflicts of interest involving
prospective clients, see Rule 1.18. For definitions of “informed
consent” and “confirmed in writing,” see Rule 9.1(g) and (c).
Resolution of a conflict of interest problem under this
Rule requires the lawyer to: 1) clearly identify the client or
clients; 2) determine whether a conflict of interest exists; 3)
decide whether the representation may be undertaken despite
the existence of a conflict, i.e., whether the conflict is
waivable; and 4) if so, consult with the clients affected under
paragraph (a) and obtain their informed consent, confirmed in
writing. The clients affected under paragraph (a) include both
of the clients referred to in paragraph (a)(1) and the one or
more clients whose representation might be materially limited
under paragraph (a)(2).
A conflict of interest may exist before representation is
undertaken, in which event the representation must be
declined, unless the lawyer obtains the informed consent of
each client under the conditions of paragraph (b). To determine
whether a conflict of interest exists, a lawyer should adopt
reasonable procedures, appropriate for the size and type of firm
and practice, to determine in both litigation and non-litigation
matters the persons and issues involved. See also COMMENT
to Rule 5.1. Ignorance caused by a failure to institute such
procedures will not excuse a lawyer’s violation of this Rule.
As to whether a client-lawyer relationship exists or, having
Rule 1.7 ALASKA COURT RULES
16
once been established, is continuing, see COMMENT to Rule
1.3 and Scope.
If a conflict arises after representation has been
undertaken, the lawyer ordinarily must withdraw from the
representation, unless the lawyer has obtained the informed
consent of the client under the conditions of paragraph (b). See
Rule 1.16. Where more than one client is involved, whether the
lawyer may continue to represent any of the clients is
determined both by the lawyer’s ability to comply with duties
owed to the former client and by the lawyer’s ability to
represent adequately the remaining client or clients, given the
lawyer’s duties to the former client. See Rule 1.9. See also
COMMENTS.
Unforeseeable developments, such as changes in
corporate and other organizational affiliations or the addition
or realignment of parties in litigation, might create conflicts in
the midst of a representation, as when a company sued by the
lawyer on behalf of one client is bought by another client
represented by the lawyer in an unrelated matter. Depending
on the circumstances, the lawyer may have the option to
withdraw from one of the representations in order to avoid the
conflict. The lawyer must seek court approval where necessary
and take steps to minimize harm to the clients. See Rule 1.16.
The lawyer must continue to protect the confidences and
secrets of the client from whose representation the lawyer has
withdrawn. See Rule 1.9(c).
Identifying Conflicts of Interest: Directly Adverse
Loyalty to a current client prohibits undertaking
representation directly adverse to that client without that
client’s informed consent. Thus, absent consent, a lawyer may
not act as an advocate in one matter against a person the
lawyer represents in some other matter, even when the matters
are wholly unrelated. The client as to whom the representation
is directly adverse is likely to feel betrayed, and the resulting
damage to the client-lawyer relationship is likely to impair the
lawyer’s ability to represent the client effectively. In addition,
the client on whose behalf the adverse representation is
undertaken reasonably may fear that the lawyer will pursue
that client’s case less effectively out of deference to the other
client, i.e., that the representation may be materially limited by
the lawyer’s interest in retaining the current client. Similarly, a
directly adverse conflict may arise when a lawyer is required to
cross-examine a client who appears as a witness in a lawsuit
involving another client, as when the testimony will be
damaging to the client who is represented in the lawsuit. On
the other hand, simultaneous representation in unrelated
matters of clients whose interests are only economically
adverse, such as representation of competing economic
enterprises in unrelated litigation, does not ordinarily constitute
a conflict of interest and thus may not require consent of the
respective clients.
Directly adverse conflicts can also arise in transactional
matters. For example, if a lawyer is asked to represent the
seller of a business in negotiations with a buyer represented by
the lawyer, not in the same transaction but in another,
unrelated matter, the lawyer could not undertake the
representation without the informed consent of each client.
Identifying Conflicts of Interest: Material Limitation
Even where there is no direct adverseness, a conflict of
interest exists if there is a significant risk that a lawyer’s ability
to consider, recommend or carry out an appropriate course of
action for the client will be materially limited as a result of the
lawyer’s other responsibilities or interests. For example, a
lawyer asked to represent several individuals seeking to form a
joint venture is likely to be materially limited in the lawyer’s
ability to recommend or advocate all possible positions that
each might take because of the lawyer’s duty of loyalty to the
others. The conflict in effect forecloses alternatives that would
otherwise be available to the client. The mere possibility of
subsequent harm does not itself require disclosure and consent.
The critical questions are the likelihood that a difference in
interests will eventuate and, if it does, whether it will
materially interfere with the lawyer’s independent professional
judgment in considering alternatives or foreclose courses of
action that reasonably should be pursued on behalf of the
client.
Lawyer’s Responsibilities to Former Clients and Other
Third Persons
In addition to conflicts with other current clients, a
lawyer’s duties of loyalty and independence may be materially
limited by responsibilities to former clients under Rule 1.9 or
by the lawyer’s responsibilities to other persons, such as
fiduciary duties arising from a lawyer’s service as a trustee,
executor or corporate director.
Personal Interest Conflicts
The lawyer’s own interests should not be permitted to
have an adverse effect on representation of a client. For
example, if the probity of a lawyer’s own conduct in a
transaction is in serious question, it may be difficult or
impossible for the lawyer to give a client detached advice.
Similarly, when a lawyer has discussions concerning possible
employment with an opponent of the lawyer’s client, or with a
law firm representing the opponent, such discussions could
materially limit the lawyer’s representation of the client. In
addition, a lawyer may not allow related business interests to
affect representation, for example, by referring clients to an
enterprise in which the lawyer has an undisclosed financial
interest. See Rule 1.8 for specific Rules pertaining to a number
of personal interest conflicts, including business transactions
with clients. See also Rule 1.10 (personal interest conflicts
under Rule 1.7 ordinarily are not imputed to other lawyers in a
law firm).
When lawyers representing different clients in the same
matter or in substantially related matters are closely related by
blood or marriage, there may be a significant risk that client
confidences and secrets will be revealed and that the lawyer’s
family relationship will interfere with both loyalty and
independent professional judgment. As a result, each client is
entitled to know of the existence and implications of the
relationship between the lawyers before the lawyer agrees to
undertake the representation. Thus, a lawyer related to another
lawyer, e.g., as parent, child, sibling or spouse, ordinarily may
not represent a client in a matter where that lawyer is
PROFESSIONAL CONDUCT Rule 1.7
17
representing another party, unless each client gives informed
consent. The disqualification arising from a close family
relationship is personal and ordinarily is not imputed to
members of firms with whom the lawyers are associated. See
Rule 1.10.
Interest of Person Paying for a Lawyer’s Service
A lawyer may be paid from a source other than the client,
including a co-client, if the client is informed of that fact and
consents and the arrangement does not compromise the
lawyer’s duty of loyalty or independent judgment to the client.
See Rule 1.8(f). If acceptance of the payment from any other
source presents a significant risk that the lawyer’s
representation of the client will be materially limited by the
lawyer’s own interest in accommodating the person paying the
lawyer’s fee or by the lawyer’s responsibilities to a payer who
is also a co-client, then the lawyer must comply with the
requirements of paragraph (b) before accepting the
representation, including determining whether the conflict is
waivable and, if so, that the client has adequate information
about the material risks of the representation.
Prohibited Representations
Ordinarily, clients may consent to representation
notwithstanding a conflict. However, as indicated in paragraph
(b), some conflicts are not waivable, meaning that the lawyer
involved cannot properly ask for such agreement or provide
representation on the basis of the client’s consent. When the
lawyer is representing more than one client, the question of
waiver must be resolved as to each client.
Waiver is typically determined by considering whether the
interests of the clients will be adequately protected if the
clients are permitted to give their informed consent to
representation burdened by a conflict of interest. Thus, under
paragraph (b)(1), representation is prohibited if in the
circumstances the lawyer cannot reasonably conclude that the
lawyer will be able to provide competent and diligent
representation. See Rule 1.1 (competence) and Rule 1.3
(diligence).
Paragraph (b)(2) describes conflicts that are not waivable
because the representation is prohibited by applicable law. For
example, in some states substantive law provides that the same
lawyer may not represent more than one defendant in a capital
case, even with the consent of the clients, and under federal
criminal statutes certain representations by a former govern-
ment lawyer are prohibited, despite the informed consent of the
former client. In addition, decisional law in some states limits
the ability of a governmental client, such as a municipality, to
consent to a conflict of interest.
Paragraph (b)(3) describes conflicts that are not waivable
because of the institutional interest in vigorous development of
each client’s position when the clients are aligned directly
against each other in the same litigation or other proceeding
before a tribunal. Whether clients are aligned directly against
each other within the meaning of this paragraph requires
examination of the context of the proceeding. Although this
paragraph does not preclude a lawyer’s multiple representation
of adverse parties to a mediation (because mediation is not a
proceeding before a “tribunal” under Rule 9.1(u)), such
representation may be precluded by paragraph (b)(1).
Informed Consent
Informed consent requires that each affected client be
aware of the relevant circumstances and of the material and
reasonably foreseeable ways that the conflict could have
adverse effects on the interests of that client. See Rule 9.1(g)
(informed consent). The information required depends on the
nature of the conflict and the nature of the risks involved.
When representation of multiple clients in a single matter is
undertaken, the information must include the implications of
the common representation, including possible effects on
loyalty, confidentiality and the attorney-client privilege and the
advantages and risks involved. See COMMENTS (effect of
common representation on confidentiality).
Under some circumstances it may be impossible to make
the disclosure necessary to obtain consent. For example, when
the lawyer represents different clients in related matters and
one of the clients refuses to consent to the disclosure necessary
to permit the other client to make an informed decision, the
lawyer cannot properly ask the latter to consent. In some cases
the alternative to common representation can be that each party
may have to obtain separate representation with the possibility
of incurring additional costs. These costs, along with the
benefits of securing separate representation, are factors that
may be considered by the affected client in determining
whether common representation is in the client’s interests.
Consent Confirmed in Writing
Paragraph (b) requires the lawyer to obtain the informed
consent of the client, confirmed in writing. Such a writing may
consist of a document executed by the client or one that the
lawyer promptly records and transmits to the client following
an oral consent. See Rule 9.1(c). See also Rule 9.1(v) (writing
includes electronic transmission). If it is not feasible to obtain
or transmit the writing at the time the client gives informed
consent, then the lawyer must obtain or transmit it within a
reasonable time thereafter. See Rule 9.1(c). The requirement of
a writing does not supplant the need in most cases for the
lawyer to talk with the client, to explain the risks and
advantages, if any, of representation burdened with a conflict
of interest, as well as reasonably available alternatives, and to
afford the client a reasonable opportunity to consider the risks
and alternatives and to raise questions and concerns. Rather,
the writing is required in order to impress upon clients the
seriousness of the decision the client is being asked to make
and to avoid disputes or ambiguities that might later occur in
the absence of a writing.
Revoking Consent
A client who has given consent to a conflict may revoke
the consent and, like any other client, may terminate the
lawyer’s representation at any time. Whether revoking consent
to the client’s own representation precludes the lawyer from
continuing to represent other clients depends on the
circumstances, including the nature of the conflict, whether the
Rule 1.7 ALASKA COURT RULES
18
client revoked consent because of a material change in
circumstances, the reasonable expectations of the other clients
and whether material detriment to the other clients or the
lawyer would result.
Consent to Future Conflict
Whether a lawyer may properly request a client to waive
conflicts that might arise in the future is subject to the test of
paragraph (b). The effectiveness of such waivers is generally
determined by the extent to which the client reasonably
understands the material risks that the waiver entails. The more
comprehensive the explanation of the types of future
representations that might arise and the actual and reasonably
foreseeable adverse consequences of those representations, the
greater the likelihood that the client will have the requisite
understanding. Thus, if the client agrees to consent to a
particular type of conflict with which the client is already
familiar, then the consent ordinarily will be effective with
regard to that type of conflict. If the consent is general and
open-ended, then the consent ordinarily will be ineffective,
because it is not reasonably likely that the client will have
understood the material risks involved. On the other hand, if
the client is an experienced user of the legal services involved
and is reasonably informed regarding the risk that a conflict
may arise, such consent is more likely to be effective,
particularly if, e.g., the client is independently represented by
other counsel in giving consent and the consent is limited to
future conflicts unrelated to the subject of the representation.
In any case, advance consent cannot be effective if the
circumstances that materialize in the future are such as would
make the conflict not waivable under paragraph (b).
Conflicts in Litigation
Paragraph (b)(3) prohibits representation of opposing
parties in the same litigation, regardless of the clients’ consent.
On the other hand, simultaneous representation of parties
whose interests in litigation may conflict, such as coplaintiffs
or codefendants, is governed by paragraph (a)(2). A conflict
may exist by reason of substantial discrepancy in the parties’
testimony, incompatibility in positions in relation to an
opposing party, or the fact that there are substantially different
possibilities of settlement of the claims or liabilities in
question. Such conflicts can arise in criminal cases as well as
civil. The potential for conflict of interest in representing
multiple defendants in a criminal case is so grave that
ordinarily a lawyer should decline to represent more than one
codefendant. On the other hand, common representation of
persons having similar interests in civil litigation is proper if
the requirements of paragraph (b) are met.
Ordinarily a lawyer may take inconsistent legal positions
in different tribunals at different times on behalf of different
clients. The mere fact that advocating a legal position on
behalf of one client might create precedent adverse to the
interests of a client represented by the lawyer in an unrelated
matter does not create a conflict of interest. A conflict of
interest exists, however, if there is a significant risk that a
lawyer’s action on behalf of one client will materially limit the
lawyer’s effectiveness in representing another client in a
different case; for example, when a decision favoring one
client will create a precedent likely to seriously weaken the
position taken on behalf of the other client. Factors relevant in
determining whether the clients need to be advised of the risk
include: where the cases are pending, whether the issue is
substantive or procedural, the temporal relationship between
the matters, the significance of the issue to the immediate and
long-term interests of the clients involved and the clients’
reasonable expectations in retaining the lawyer. If there is
significant risk of material limitation, then absent informed
consent of the affected clients, the lawyer must refuse one of
the representations or withdraw from one or both matters.
When a lawyer represents or seeks to represent a class of
plaintiffs or defendants in a class-action lawsuit, unnamed
members of the class are ordinarily not considered to be clients
of the lawyer for purposes of applying paragraph (a)(1) of this
Rule. Thus, the lawyer does not typically need to get the
consent of such a person before representing a client suing the
person in an unrelated matter. Similarly, a lawyer seeking to
represent an opponent in a class action does not typically need
the consent of an unnamed member of the class whom the
lawyer represents in an unrelated matter. However, normal
conflict rules apply when the lawyer litigates facts or claims
specific to an individual class member.
Nonlitigation Conflicts
Conflicts of interest under paragraphs (a)(1) and (a)(2)
arise in contexts other than litigation. For a discussion of
directly adverse conflicts in transactional matters, see
COMMENT. Relevant factors in determining whether there is
significant potential for material limitation include the duration
and intimacy of the lawyer’s relationship with the client or
clients involved, the functions being performed by the lawyer,
the likelihood that disagreements will arise and the likely
prejudice to the client from the conflict. The question is often
one of proximity and degree. See COMMENT.
For example, conflict questions may arise in estate
planning and estate administration. A lawyer may be called
upon to prepare wills for several family members, such as
husband and wife, and, depending upon the circumstances, a
conflict of interest may be present. In estate administration the
identity of the client may be unclear under the law of a
particular jurisdiction. Under one view, the client is the
fiduciary; under another view the client is the estate or trust,
including its beneficiaries. In order to comply with conflict of
interest rules, the lawyer should make clear the lawyer’s
relationship to the parties involved.
Whether a conflict is waivable depends on the
circumstances. For example, a lawyer may not represent
multiple parties to a negotiation whose interests are
fundamentally antagonistic to each other, but common
representation is permissible where the clients are generally
aligned in interest even though there is some difference in
interest among them. Thus, a lawyer may seek to establish or
adjust a relationship between clients on an amicable and
mutually advantageous basis; for example, in helping to
organize a business in which two or more clients are
entrepreneurs, working out the financial reorganization of an
enterprise in which two or more clients have an interest or
PROFESSIONAL CONDUCT Rule 1.8
19
arranging a property distribution in settlement of an estate. The
lawyer seeks to resolve potentially adverse interests by
developing the parties’ mutual interests. Otherwise, each party
might have to obtain separate representation, with the
possibility of incurring additional cost, complication, or even
litigation. Given these and other relevant factors, the clients
may prefer that the lawyer act for all of them.
Special Considerations in Common Representation
In considering whether to represent multiple clients in the
same matter, a lawyer should be mindful that if the common
representation fails because the potentially adverse interests
cannot be reconciled, the result can be additional cost,
embarrassment and recrimination. Ordinarily, the lawyer will
be forced to withdraw from representing all of the clients if the
common representation fails. In some situations, the risk of
failure is so great that multiple representation is plainly
impossible. For example, a lawyer cannot undertake common
representation of clients where contentious litigation or
negotiations between them are imminent or contemplated.
Moreover, because the lawyer is required to be impartial
between commonly represented clients, representation of
multiple clients is improper when it is unlikely that impartiality
can be maintained. Generally, if the relationship between the
parties has already assumed antagonism, the possibility that the
clients’ interests can be adequately served by common
representation is not very good. Other relevant factors are
whether the lawyer subsequently will represent both parties on
a continuing basis and whether the situation involves creating
or terminating a relationship between the parties.
A particularly important factor in determining the
appropriateness of common representation is the effect on
client-lawyer confidentiality and the attorney-client privilege.
With regard to the attorney-client privilege, the prevailing rule
is that, as between commonly represented clients, the privilege
does not attach. Hence, it must be assumed that if litigation
eventuates between the clients, the privilege will not protect
any such communications, and the clients should be so
advised.
As to the duty of confidentiality, continued common
representation will almost certainly be inadequate if one client
asks the lawyer not to disclose to the other client information
relevant to the common representation. This is so because the
lawyer has an equal duty of loyalty to each client, and each
client has the right to be informed of anything bearing on the
representation that might affect that client’s interests and the
right to expect that the lawyer will use that information to that
client’s benefit. See Rule 1.4. The lawyer should, at the outset
of the common representation and as part of the process of
obtaining each client’s informed consent, advise each client
that information will be shared and that the lawyer will have to
withdraw if one client decides that some matter material to the
representation should be kept from the other. In limited
circumstances, it may be appropriate for the lawyer to proceed
with the representation when the clients have agreed, after
being properly informed, that the lawyer will keep certain
information confidential. For example, the lawyer may
reasonably conclude that failure to disclose one client’s trade
secrets to another client will not adversely affect representation
involving a joint venture between the clients and agree to keep
that information confidential with the informed consent of both
clients.
When seeking to establish or adjust a relationship between
clients, the lawyer should make clear that the lawyer’s role is
not that of partisanship normally expected in other
circumstances and, thus, that the clients may be required to
assume greater responsibility for decisions than when each
client is separately represented. Any limitations on the scope of
the representation made necessary as a result of the common
representation should be fully explained to the clients at the
outset of the representation. See Rule 1.2(c).
Subject to the above limitations, each client in the
common representation has the right to loyal and diligent
representation and the protection of Rule 1.9 concerning the
obligations to a former client. The client also has the right to
discharge the lawyer as stated in Rule 1.16.
Organizational Clients
A lawyer who represents a corporation or other
organization does not, by virtue of that representation alone,
represent any constituent or affiliated organization, such as a
parent or subsidiary. See Rules 1.13(a) and 1.13(f) (the
definition of “constituent”). Thus, the lawyer for an
organization is not barred from accepting representation
adverse to an affiliate in an unrelated matter, unless the
circumstances are such that the affiliate should also be
considered a client of the lawyer, there is an understanding
between the lawyer and the organizational client that the
lawyer will avoid representation adverse to the client’s
affiliates, or the lawyer’s obligations to either the
organizational client or the new client are likely to limit
materially the lawyer’s representation of the other client.
A lawyer for a corporation or other organization who is
also a member of its board of directors should determine
whether the responsibilities of the two roles may conflict. The
lawyer may be called on to advise the corporation in matters
involving actions of the directors. Consideration should be
given to the frequency with which such situations may arise,
the potential intensity of the conflict, the effect of the lawyer’s
resignation from the board and the possibility of the
corporation’s obtaining legal advice from another lawyer in
such situations. If there is material risk that the dual role will
compromise the lawyer’s independence of professional
judgment, the lawyer should not serve as a director or should
cease to act as the corporation’s lawyer when conflicts of
interest arise. The lawyer should advise the other members of
the board that in some circumstances matters discussed at
board meetings while the lawyer is present in the capacity of
director might not be protected by the attorney-client privilege
and that conflict of interest considerations might require the
lawyer’s recusal as a director or might require the lawyer and
the lawyer’s firm to decline representation of the corporation
in a matter.
Rule 1.8. Conflict of Interest: Current Clients:
Specific Rules
Rule 1.8 ALASKA COURT RULES
20
(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 in a manner that
can be reasonably understood by the client;
(2) the lawyer advises the client in writing to seek
independent legal advice on the transaction and gives the client
a reasonable opportunity to do so; and
(3) 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 a confidence or secret of a
client to the disadvantage of the client unless the client gives
informed consent in a writing signed by the client, 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 or individual with whom
the lawyer or the client maintains a close familial or domestic
relationship.
(d) Prior to the conclusion of the 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 a client’s confidences and
secrets.
(e) A lawyer shall not provide financial assistance to a
client in connection with pending or contemplated litigation,
except that:
(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; and
(3) a lawyer may provide modest gifts to a client for food,
rent, transportation, medicine, and other basic living expenses.
The lawyer:
(i) may not promise, assure, or imply the availability of
such gifts prior to retention or as an inducement to continue the
client-lawyer relationship after retention;
(ii) may not seek or accept reimbursement from the client,
a relative of the client, or anyone affiliated with the client; and
(iii) may not publicize or advertise a willingness to
provide such gifts to prospective clients.
Gifts that would compromise the lawyer’s independent
professional judgment are prohibited.
(f) A lawyer shall not accept compensation for
representing a client from one other than the client unless:
(1) the client gives 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 a client’s confidences or
secrets are 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; 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.
(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 may:
(1) acquire a lien authorized by law to secure the
lawyer’s fee or expenses; and
(2) contract with a client for a reasonable contingent fee
in a civil case.
(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 and the sexual
relationship does not create a conflict under Rule 1.7(a)(2).
For purposes of this rule, when the client is an organization,
“client” means a constituent of the organization who
supervises, directs, or regularly consults with that lawyer
concerning the organization’s legal matters. See Rule 1.13(h)
for the definition of “constituent.”
(k) While lawyers are associated in a firm, a prohibition
in the foregoing paragraphs, except (j), that applies to any one
of them shall apply to all of them.
(SCO 1123 effective July 15, 1993; amended by SCO 1332
effective January 15, 1999; rescinded and repromulgated by
SCO 1680 effective April 15, 2009; and by SCO 1991
effective November 29, 2022)
PROFESSIONAL CONDUCT Rule 1.8
21
ALASKA COMMENT
The Committee concluded that written client consent is
required under Rule 1.8(b) in order to assure that there is
sufficient notice to client and that the consent is unequivocal.
The Committee concluded that lawyers should not be able
to make an agreement prospectively limiting the lawyer’s
liability to a client for malpractice.
The Committee concluded that in addition to advising an
unrepresented client about the appropriateness of seeking
independent counsel, the lawyer must provide a reasonable
opportunity for the client to do so.
See COMMENT to Rule 1.5 (Terms of Payment).
Subsection (k) abrogates the portion of Alaska Bar
Association Ethics Opinion 92-6 that extended the sexual
relationship disqualification to all members of the attorney’s
firm.
COMMENT
Business Transactions Between Client and Lawyer
A lawyer’s legal skill and training, together with the
relationship of trust and confidence between lawyer and client,
create the possibility of overreaching when the lawyer
participates in a business, property, or financial transaction
with a client, for example, a loan or sales transaction or a
lawyer investment on behalf of a client. The requirements of
paragraph (a) must be met even when the transaction is not
closely related to the subject matter of the representation, as
when a lawyer drafting a will for a client learns that the client
needs money for unrelated expenses and offers to make a loan
to the client. The Rule applies to lawyers engaged in the sale of
goods or services related to the practice of law, for example,
the sale of title insurance or investment services to existing
clients of the lawyer’s legal practice. See Rule 5.7. It also
applies to lawyers purchasing property from estates they
represent. It does not apply to ordinary fee arrangements
between client and lawyer, which are governed by Rule 1.5,
although its requirements must be met when the lawyer accepts
an interest in the client’s business or other nonmonetary
property as payment of all or part of a fee. In addition, the Rule
does not apply to standard commercial transactions between
the lawyer and the client for products or services that the client
generally markets to others, for example, banking or brokerage
services, medical services, products manufactured or
distributed by the client, and utilities’ services. In such
transactions, the lawyer has no advantage in dealing with the
client, and the restrictions in paragraph (a) are unnecessary and
impracticable.
Paragraph (a)(1) requires that the transaction itself be fair
to the client and that its essential terms be communicated to the
client, in writing, in a manner that can be reasonably
understood. Paragraph (a)(2) requires that the client also be
advised, in writing, to seek independent legal advice on the
transaction. It also requires that the client be given a
reasonable opportunity to obtain such advice. Paragraph (a)(3)
requires that the lawyer obtain the client’s informed consent, in
a writing signed by the client, both to the essential terms of the
transaction and to the lawyer’s role. When necessary, the
lawyer should discuss both the material risks of the proposed
transaction, including any risk presented by the lawyer’s
involvement, and the existence of reasonably available
alternatives and should explain why the advice of independent
legal counsel is desirable. See Rule 9.1(g) (definition of
informed consent).
The risk to a client is greatest when the client expects the
lawyer to represent the client in the transaction itself or when
the lawyer’s financial interest otherwise poses a significant risk
that the lawyer’s representation of the client will be materially
limited by the lawyer’s financial interest in the transaction.
Here the lawyer’s role requires that the lawyer must comply,
not only with the requirements of paragraph (a), but also with
the requirements of Rule 1.7. Under that Rule, the lawyer must
disclose the risks associated with the lawyer’s dual role as both
legal adviser and participant in the transaction, such as the risk
that the lawyer will structure the transaction or give legal
advice in a way that favors the lawyer’s interests at the
expense of the client. Moreover, the lawyer must obtain the
client’s informed consent. In some cases, the lawyer’s interest
may be such that Rule 1.7 will preclude the lawyer from
seeking the client’s consent to the transaction.
If the client is independently represented in the
transaction, paragraph (a)(2) of this Rule is inapplicable, and
the paragraph (a)(1) requirement for full disclosure is satisfied
either by a written disclosure by the lawyer involved in the
transaction or by the client’s independent counsel. The fact that
the client was independently represented in the transaction is
relevant in determining whether the agreement was fair and
reasonable to the client as paragraph (a)(1) further requires.
Use of Information Related to Representation
Use of confidences and secrets to the disadvantage of the
client violates the lawyer’s duty of loyalty. Paragraph (b)
applies when the information is used to benefit either the
lawyer or a third person, such as another client or business
associate of the lawyer. For example, if a lawyer learns that a
client intends to purchase and develop several parcels of land,
the lawyer may not use that information to purchase one of the
parcels in competition with the client or to recommend that
another client make such a purchase. The Rule does not
prohibit uses that do not disadvantage the client. For example,
a lawyer who learns a government agency’s interpretation of
trade legislation during the representation of one client may
properly use that information to benefit other clients.
Paragraph (b) prohibits disadvantageous use of client
information unless the client gives informed consent, except as
permitted or required by these Rules. See Rules 1.2(d), 1.6,
1.9(c), 3.3, 4.1(b), 8.1, and 8.3.
Gifts to Lawyers
A lawyer may accept a gift from a client, if the transaction
meets general standards of fairness. For example, a simple gift
such as a present given at a holiday or as a token of
appreciation is permitted. If a client offers the lawyer a more
substantial gift, paragraph (c) does not prohibit the lawyer
Rule 1.8 ALASKA COURT RULES
22
from accepting it, although such a gift may be voidable by the
client under the doctrine of undue influence, which treats client
gifts as presumptively fraudulent. In any event, due to
concerns about overreaching and imposition on clients, a
lawyer may not suggest that a substantial gift be made to the
lawyer or for the lawyer’s benefit, except where the lawyer is
related to the client as set forth in paragraph (c).
If effectuation of a substantial gift requires preparing a
legal instrument such as a will or conveyance the client should
have the detached advice that another lawyer can provide. The
sole exception to this Rule is where the client is a relative of
the donee.
This Rule does not prohibit a lawyer from seeking to have
the lawyer or a partner or associate of the lawyer named as
executor of the client’s estate or to another potentially lucrative
fiduciary position. Nevertheless, such appointments will be
subject to the general conflict of interest provision in Rule 1.7
when there is a significant risk that the lawyer’s interest in
obtaining the appointment will materially limit the lawyer’s
independent professional judgment in advising the client
concerning the choice of an executor or other fiduciary. In
obtaining the client’s informed consent to the conflict, the
lawyer should advise the client concerning the nature and
extent of the lawyer’s financial interest in the appointment, as
well as the availability of alternative candidates for the
position.
Literary Rights
An agreement by which a lawyer acquires literary or
media rights concerning the conduct of the representation
creates a conflict between the interests of the client and the
personal interests of the lawyer. Measures suitable in the
representation of the client may detract from the publication
value of an account of the representation. Paragraph (d) does
not prohibit a lawyer representing a client in a transaction
concerning literary property from agreeing that the lawyer’s
fee shall consist of a share in ownership in the property, if the
arrangement conforms to Rule 1.5 and paragraphs (a) and (i).
Financial Assistance
Lawyers may not subsidize lawsuits or administrative
proceedings brought on behalf of their clients, including
making or guaranteeing loans to their clients for living
expenses, because to do so would encourage clients to pursue
lawsuits that might not otherwise be brought and because such
assistance gives lawyers too great a financial stake in the
litigation. These dangers do not warrant a prohibition on a
lawyer lending a client court costs and litigation expenses,
including the expenses of medical examination and the costs of
obtaining and presenting evidence, because these advances are
virtually indistinguishable from contingent fees and help
ensure access to the courts. Similarly, an exception allowing
lawyers representing indigent clients to pay court costs and
litigation expenses regardless of whether these funds will be
repaid is warranted.
Under Paragraph (e)(3), a lawyer may give a client modest
gifts for food, rent, transportation, medicine, and similar basic
necessities of life. Because such gifts may have collateral
consequences for the client – for example, they may affect the
client’s tax liability or the client’s eligibility for
government benefits or social services – the lawyer should
consult with the client about these issues before giving the
gifts. See Rule 1.4.
Even though Paragraph (e)(3) allows lawyers to give
modest gifts to clients for the listed basic living expenses,
these gifts must not be so substantial that they would create a
conflict between the lawyer’s interests and the client’s interests
in regard to the handling or settling of the case. In addition,
Paragraph (e)(3) prohibits a lawyer from (i) promising,
assuring, or implying the availability of such financial
assistance prior to the lawyer’s retention or as an inducement
to continue the client-lawyer relationship after retention; (ii)
seeking or accepting reimbursement from the client, a relative
of the client, or anyone affiliated with the client; and (iii)
publicizing or advertising a willingness to provide gifts to
prospective to clients beyond court costs and expenses of
litigation in connection with contemplated or pending litigation
or administrative proceedings.
Person Paying for a Lawyer’s Services
Lawyers are frequently asked to represent a client under
circumstances in which a third person will compensate the
lawyer, in whole or in part. The third person might be a
relative or friend, an indemnitor (such as a liability insurance
company), or a co-client (such as a corporation sued along
with one or more of its employees). Because third-party payers
frequently have interests that differ from those of the client,
including interests in minimizing the amount spent on the
representation and in learning how the representation is
progressing, lawyers are prohibited from accepting or
continuing such representations unless the lawyer determines
that there will be no interference with the lawyer’s independent
professional judgment and there is informed consent from the
client. See also Rule 5.4(c) (prohibiting interference with a
lawyer’s professional judgment by one who recommends,
employs or pays the lawyer to render legal services for
another).
Sometimes, it will be sufficient for the lawyer to obtain
the client’s informed consent regarding the fact of the payment
and the identity of the third-party payer. If, however, the fee
arrangement creates a conflict of interest for the lawyer, then
the lawyer must comply with Rule. 1.7. The lawyer must also
conform to the requirements of Rule 1.6 concerning
confidentiality. Under Rule 1.7(a), a conflict of interest exists
if there is significant risk that the lawyer’s representation of the
client will be materially limited by the lawyer’s own interest in
the fee arrangement or by the lawyer’s responsibilities to the
third-party payer (for example, when the third-party payer is a
co-client). Under Rule 1.7(b), the lawyer may accept or
continue the representation with the informed consent of each
affected client, unless the conflict is not waived under that
paragraph. Under Rule 1.7(b), the informed consent must be
confirmed in writing.
Aggregate Settlements
PROFESSIONAL CONDUCT Rule 1.8
23
Differences in willingness to make or accept an offer of
settlement are among the risks of common representation of
multiple clients by a single lawyer. Under Rule 1.7, this is one
of the risks that should be discussed before undertaking the
representation, as part of the process of obtaining the clients’
informed consent. In addition, Rule 1.2(a) protects each
client’s right to have the final say in deciding whether to
accept or reject an offer of settlement and in deciding whether
to enter a guilty or nolo contendere plea in a criminal case. The
rule stated in this paragraph is a corollary of both these Rules
and provides that, before any settlement offer or plea bargain is
made or accepted on behalf of multiple clients, the lawyer
must inform each of them about all the material terms of the
settlement, including what the other clients will receive or pay
if the settlement or plea offer is accepted. See also Rule 9.1(g)
(definition of informed consent). Lawyers representing a class
of plaintiffs or defendants, or those proceeding derivatively,
may not have a full client-lawyer relationship with each
member of the class; nevertheless, such lawyers must comply
with applicable rules regulating notification of class members
and other procedural requirements designed to ensure adequate
protection of the entire class.
Limiting Liability and Settling Malpractice Claims
Agreements prospectively limiting a lawyer’s liability for
malpractice are prohibited. This paragraph does not, however,
prohibit a lawyer from entering into an agreement with the
client to arbitrate legal malpractice claims, provided such
agreements are enforceable and the client is fully informed of
the scope and effect of the agreement. Nor does this paragraph
limit the ability of lawyers to practice in the form of a limited-
liability entity, where permitted by law, provided that each
lawyer remains personally liable to the client for his or her
own conduct and the firm complies with any conditions
required by law, such as provisions requiring client notification
or maintenance of adequate liability insurance. Nor does it
prohibit an agreement in accordance with Rule 1.2 that defines
the scope of the representation, although a definition of scope
that makes the obligations of representation illusory will
amount to an attempt to limit liability.
Agreements settling a claim or a potential claim for
malpractice are not prohibited by this Rule. Nevertheless, in
view of the danger that a lawyer will take unfair advantage of
an unrepresented client or former client, the lawyer must first
advise the client in writing of the benefits of independent
representation in connection with such a settlement. In
addition, the lawyer must give the client or former client a
reasonable opportunity to find and consult independent
counsel.
Acquiring Proprietary Interest in Litigation
Paragraph (i) states the traditional general rule that
lawyers are prohibited from acquiring a proprietary interest in
litigation. Like paragraph (e), the general rule has its basis in
common law champerty and maintenance and is designed to
avoid giving the lawyer too great an interest in the
representation. In addition, when the lawyer acquires an
ownership interest in the subject of the representation, it will
be more difficult for a client to discharge the lawyer if the
client so desires. The Rule is subject to specific exceptions
developed in decisional law and continued in these Rules. The
exception for certain advances of the costs of litigation is set
forth in paragraph (e). In addition, paragraph (i) sets forth
exceptions for liens authorized by law to secure the lawyer’s
fees or expenses and contracts for reasonable contingent fees.
The law of each jurisdiction determines which liens are
authorized by law. These may include liens granted by statute,
liens originating in common law and liens acquired by contract
with the client. When a lawyer acquires by contract a security
interest in property other than that recovered through the
lawyer’s efforts in the litigation, such an acquisition is a
business or financial transaction with a client and is governed
by the requirements of paragraph (a). Contracts for contingent
fees in civil cases are governed by Rule 1.5.
Client-Lawyer Sexual Relationships
The relationship between lawyer and client is a fiduciary
one in which the lawyer occupies the highest position of trust
and confidence. The relationship is frequently unequal; thus, a
sexual relationship between lawyer and client can involve
unfair exploitation of the lawyer’s fiduciary role, in violation
of the lawyer’s basic ethical obligation not to use the trust of
the client to the client’s disadvantage. In addition, such a
relationship presents a significant danger that, because of the
lawyer’s emotional involvement, the lawyer will be unable to
represent the client without impairment of the exercise of
independent professional judgment. Moreover, a blurred line
between the professional and personal relationships may make
it difficult to predict to what extent client confidences and
secrets will be protected by the attorney-client evidentiary
privilege, since client confidences and secrets are protected by
privilege only when they are imparted in the context of the
client-lawyer relationship. Because of the significant danger of
harm to client interests and because the client’s own emotional
involvement renders it unlikely that the client could give
adequate informed consent, this Rule prohibits the lawyer from
having sexual relations with a client regardless of whether the
relationship is consensual and regardless of the absence of
prejudice to the client.
Sexual relationships that predate the client-lawyer
relationship are not prohibited. Issues relating to the
exploitation of the fiduciary relationship and client dependency
are diminished when the sexual relationship existed prior to the
commencement of the client-lawyer relationship. However,
before proceeding with the representation in these circum-
stances, the lawyer should consider whether the lawyer’s
ability to represent the client will be materially limited by the
relationship. See Rule 1.7(a)(2).
Imputation of Prohibitions
Under paragraph (k), a prohibition on conduct by an
individual lawyer in paragraphs (a) through (i) also applies to
all lawyers associated in a firm with the personally prohibited
lawyer. For example, one lawyer in a firm may not enter into a
business transaction with a client of another member of the
firm without complying with paragraph (a), even if the first
lawyer is not personally involved in the representation of the
client. The prohibition set forth in paragraph (j) is personal and
Rule 1.9 ALASKA COURT RULES
24
is not applied to associated lawyers.
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 confidences and secrets 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 confidences and secrets except as these Rules
would permit or require with respect to a client.
(SCO 1123 effective July 15, 1993; amended by SCO 1332
effective January 15, 1999; rescinded and repromulgated by
SCO 1680 effective April 15, 2009)
COMMENT
After termination of a client-lawyer relationship, a lawyer
has certain continuing duties with respect to confidentiality and
conflicts of interest and thus may not represent another client
except in conformity with this Rule. Under this Rule, for
example, a lawyer could not properly seek to rescind on behalf
of a new client a contract drafted on behalf of the former
client. So also a lawyer who has prosecuted an accused person
could not properly represent the accused in a subsequent civil
action against the government concerning the same transaction.
Nor could a lawyer who has represented multiple clients in a
matter represent one of the clients against the others in the
same or a substantially related matter after a dispute arose
among the clients in that matter, unless all affected clients give
informed consent. See COMMENT. Current and former
government lawyers must comply with this Rule to the extent
required by Rule 1.11.
The scope of a “matter” for purposes of this Rule depends
on the facts of a particular situation or transaction. The
lawyer’s involvement in a matter can also be a question of
degree. When a lawyer has been directly involved in a specific
transaction, subsequent representation of other clients with
materially adverse interests in that transaction clearly is
prohibited. On the other hand, a lawyer who recurrently
handled a type of problem for a former client is not precluded
from later representing another client in a factually distinct
problem of that type even though the subsequent representation
involves a position adverse to the prior client. Similar consid-
erations can apply to the reassignment of military lawyers
between defense and prosecution functions within the same
military jurisdictions. The underlying question is whether the
lawyer was so involved in the matter that the subsequent
representation can be justly regarded as a changing of sides in
the matter in question.
“Substantially related” is defined in Rule 9.1. As an
example, a lawyer who has represented a businessperson and
learned extensive private financial information about that
person may not then represent that person’s spouse in seeking
a divorce, because the matters are substantially related.
Similarly, a lawyer who has previously represented a client in
securing environmental permits to build a shopping center
would be precluded from representing neighbors seeking to
oppose rezoning of the property on the basis of environmental
considerations; however, the lawyer would not be precluded,
on the grounds of substantial relationship, from defending a
tenant of the completed shopping center in resisting eviction
for nonpayment of rent. Information that has been disclosed to
the public or to other parties adverse to the former client
ordinarily will not be disqualifying. Information acquired in a
prior representation may have been rendered obsolete by the
passage of time, a circumstance that may be relevant in
determining whether two representations are substantially
related. In the case of an organizational client, general
knowledge of the client’s policies and practices ordinarily will
not preclude a subsequent representation; on the other hand,
knowledge of specific facts gained in a prior representation
that are relevant to the matter in question ordinarily will
preclude such a representation. A former client is not required
to reveal the confidential information learned by the lawyer in
order to establish a substantial risk that the lawyer has
confidential information to use in the subsequent matter. A
conclusion about the possession of such information may be
based on the nature of the services the lawyer provided the
former client and information that would in ordinary practice
be learned by a lawyer providing such services.
Lawyers Moving Between Firms
When lawyers have been associated within a firm but then
end their association, the question of whether a lawyer should
undertake representation is more complicated. There are
several competing considerations. First, the client previously
represented by the former firm must be reasonably assured that
the principle of loyalty to the client is not compromised.
Second, the rule should not be so broadly cast as to preclude
other persons from having reasonable choice of legal counsel.
Third, the rule should not unreasonably hamper lawyers from
forming new associations and taking on new clients after
having left a previous association. In this connection, it should
be recognized that today many lawyers practice in firms, that
many lawyers to some degree limit their practice to one field
or another, and that many move from one association to
PROFESSIONAL CONDUCT Rule 1.10
25
another several times in their careers. If the concept of
imputation were applied with unqualified rigor, the result
would be radical curtailment of the opportunity of lawyers to
move from one practice setting to another and of the
opportunity of clients to change counsel.
Paragraph (b) operates to disqualify the lawyer only when
the lawyer involved has actual knowledge of information
protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with
one firm acquired no knowledge or confidences and secrets of
a particular client of the firm, and that lawyer later joined
another firm, neither the lawyer individually nor the second
firm is disqualified from representing another client in the
same or a related matter even though the interests of the two
clients conflict. See Rule 1.10(b) for the restrictions on a firm
once a lawyer has terminated association with the firm.
Application of paragraph (b) depends on a situation’s
particular facts, aided by inferences, deductions, or working
presumptions that reasonably may be made about the way in
which lawyers work together. A lawyer may have general
access to files of all clients of a law firm and may regularly
participate in discussions of their affairs; it should be inferred
that such a lawyer in fact is privy to all information about all
the firm’s clients. In contrast, another lawyer may have access
to the files of only a limited number of clients and participate
in discussions of the affairs of no other clients; in the absence
of information to the contrary, it should be inferred that such a
lawyer in fact is privy to information about the clients actually
served but not those of other clients.
Independent of the question of disqualification of a firm, a
lawyer changing professional association has a continuing duty
to preserve confidentiality of information about a client
formerly represented. See Rules 1.6 and 1.9(c).
Paragraph (c) provides that information acquired by the
lawyer in the course of representing a client may not
subsequently be used or revealed by the lawyer to the
disadvantage of the client. However, the fact that a lawyer has
once served a client does not preclude the lawyer from using
generally known information about that client when later
representing another client.
The provisions of this Rule are for the protection of
former clients and can be waived if the client gives informed
consent, which consent must be confirmed in writing under
paragraphs (a) and (b). See Rule 9.1(g). With regard to the
effectiveness of an advance waiver, see COMMENT to Rule
1.7. With regard to disqualification of a firm with which a
lawyer is or was formerly associated, see Rule 1.10.
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 or 1.9(c) that is material to the matter,
or the firm retains records containing such information.
(c) A disqualification prescribed by this rule may be
waived by the affected client under the conditions stated in
Rule 1.7.
(d) The disqualification of lawyers associated in a firm
with former or current government lawyers is governed by
Rule 1.11.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 5, 2009; amended
by SCO 1984 effective October 5, 2022)
ALASKA COMMENT
Definition of “Firm”
For purposes of the Rules of Professional Conduct, the
term “firm” denotes lawyers in a law partnership, professional
corporation, sole proprietorship, or other association authori-
zed to practice law; or lawyers employed in a legal services
organization or the legal department of a corporation or other
organization. See Rule 9.1(e). Whether two or more lawyers
constitute a firm within this definition can depend on the
specific facts. See Rule 9.1, COMMENTS.
Principles of Imputed Disqualification
The rule of imputed disqualification stated in paragraph
(a) gives effect to the principle of loyalty to the client as it
applies to lawyers who practice in a law firm. Such situations
can be considered from the premise that a firm of lawyers is
essentially one lawyer for purposes of the rules governing
loyalty to the client, or from the premise that each lawyer is
vicariously bound by the obligation of loyalty owed by each
lawyer with whom the lawyer is associated. Paragraph (a)
operates only among the lawyers currently associated in a firm.
When a lawyer moves from one firm to another, the situation is
governed by Rules 1.9(b) and 1.10(b).
The rule in paragraph (a) does not prohibit representation
where neither questions of client loyalty nor protection of
confidential information are presented. Where one lawyer in a
firm could not effectively represent a given client because of
strong political beliefs, for example, but that lawyer will do no
work on the case and the personal beliefs of the lawyer will not
materially limit the representation by others in the firm, the
firm should not be disqualified. On the other hand, if an
opposing party in a case were owned by a lawyer in the law
firm, and others in the firm would be materially limited in
Rule 1.11 ALASKA COURT RULES
26
pursuing the matter because of loyalty to that lawyer, the
personal disqualification of the lawyer would be imputed to all
others in the firm.
The rule in paragraph (a) also does not prohibit
representation by others in the law firm where the person
prohibited from involvement in a matter is a nonlawyer, such
as a paralegal or legal secretary. Nor does paragraph (a)
prohibit representation if the lawyer is prohibited from acting
because of events before the person became a lawyer, for
example, work that the person did while a law student. Such
persons, however, ordinarily must be screened from any
personal participation in the matter to avoid communication to
others in the firm of confidential information that both the
nonlawyers and the firm have a legal duty to protect. See Rules
9.1(q) and 5.3.
Rule 1.10(b) operates to permit a law firm, under certain
circumstances, to represent a person with interests directly
adverse to those of a client represented by a lawyer who
formerly was associated with the firm. The Rule applies
regardless of when the formerly associated lawyer represented
the client. However, the law firm may not represent a person
with interests adverse to those of a present client of the firm,
which would violate Rule 1.7. Moreover, the firm may not
represent the person where the matter is the same or
substantially related to that in which the formerly associated
lawyer represented the client and any other lawyer currently in
the firm has material information protected by Rules 1.6 and
1.9(c).
Rule 1.10(c) removes imputation with the informed
consent of the affected client or former client under the
conditions stated in Rule 1.7. The conditions stated in Rule 1.7
require the lawyer to determine that the representation is not
prohibited by Rule 1.7(b) and that each affected client or
former client has given informed consent to the representation,
confirmed in writing. In some cases, the risk may be so severe
that the conflict may not be cured by client consent. For a
discussion of the effectiveness of client waivers of conflicts
that might arise in the future, see Rule 1.7, COMMENT. For a
definition of informed consent, see Rule 9.1(g).
Where a lawyer has joined a private firm after having
represented the government, imputation is governed by Rule
1.11(b) and (c), not this Rule. Under Rule 1.11(d), where a
lawyer represents the government after having served clients in
private practice, nongovernmental employment, or in another
government agency, former-client conflicts are not imputed to
government lawyers associated with the individually
disqualified lawyer.
Where a lawyer is prohibited from engaging in certain
transactions under Rule 1.8, paragraph (k) of that Rule, and not
this Rule, determines whether that prohibition also applies to
other lawyers associated in a firm with the personally
prohibited lawyer.
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:
(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).
PROFESSIONAL CONDUCT Rule 1.12
27
(e) As used in this Rule, the term “matter” includes:
(1) any judicial or other proceeding, application, request
for a ruling or other determination, transaction, 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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1984 effective October 5, 2022)
COMMENT
A lawyer who has served or is currently serving as a
public officer or employee is personally subject to the Rules of
Professional Conduct, including the prohibition against
concurrent conflicts of interest stated in Rule 1.7. In addition,
such a lawyer may be subject to statutes and government
regulations regarding conflict of interest. Such statutes and
regulations may circumscribe the extent to which the
government agency may give consent under this Rule. See
Rule 9.1(g) for the definition of informed consent.
Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations
of an individual lawyer who has served or is currently serving
as an officer or employee of the government toward a former
government or private client. Rule 1.10 is not applicable to the
conflicts of interest addressed by this Rule. Rather, paragraph
(b) sets forth a special imputation rule for former government
lawyers that provides for screening and notice. Because of the
special problems raised by imputation within a government
agency, paragraph (d) does not impute the conflicts of a lawyer
currently serving as an officer or employee of the government
to other associated government officers or employees, although
ordinarily it will be prudent to screen such lawyers.
Paragraphs (a)(2) and (d)(2) apply regardless of whether a
lawyer is adverse to a former client and are thus designed not
only to protect the former client, but also to prevent a lawyer
from exploiting public office for the advantage of another
client. For example, a lawyer who has pursued a claim on
behalf of the government may not pursue the same claim on
behalf of a later private client after the lawyer has left
government service, except when authorized to do so by the
government agency under paragraph (a). Similarly, a lawyer
who has pursued a claim on behalf of a private client may not
pursue the claim on behalf of the government, except when
authorized to do so by paragraph (d). As with paragraphs (a)(1)
and (d)(1), Rule 1.10 is not applicable to the conflicts of
interest addressed by these paragraphs.
This Rule represents a balancing of interests. On the one
hand, where the successive clients are a government agency
and another client, public or private, the risk exists that power
or discretion vested in that agency might be used for the
special benefit of the other client. A lawyer should not be in a
position where benefit to the other client might affect
performance of the lawyer’s professional functions on behalf
of the government. Also, unfair advantage could accrue to the
other client by reason of access to confidential government
information about the client’s adversary obtainable only
through the lawyer’s government service. On the other hand,
the rules governing lawyers presently or formerly employed by
a government agency should not be so restrictive as to inhibit
transfer of employment to and from the government. The
government has a legitimate need to attract qualified lawyers
as well as to maintain high ethical standards. Thus a former
government lawyer is disqualified only from particular matters
in which the lawyer participated personally and substantially.
The provisions for screening and waiver in paragraph (b) are
necessary to prevent the disqualification rule from imposing
too severe a deterrent against entering public service. The
limitation of disqualification in paragraphs (a)(2) and (d)(2) to
matters involving a specific party or parties, rather than
extending disqualification to all substantive issues on which
the lawyer worked, serves a similar function.
When a lawyer has been employed by one government
agency and then moves to a second government agency, it may
be appropriate to treat that second agency as another client for
purposes of this Rule, as when a lawyer is employed by a city
and subsequently is employed by a federal agency. However,
because the conflict of interest is governed by paragraph (d),
the latter agency is not required to screen the lawyer as
paragraph (b) requires a law firm to do. The question of
whether two government agencies should be regarded as the
same or different clients for conflict of interest purposes is
beyond the scope of these Rules. See Rule 1.13 COMMENT.
Paragraphs (b) and (c) contemplate a screening
arrangement. See Rule 9.1(q) (requirements for screening
procedures). These paragraphs do not prohibit a lawyer from
receiving a salary or partnership share established by prior
independent agreement, but that lawyer may not receive
compensation directly relating the lawyer’s compensation to
the fee in the matter in which the lawyer is disqualified.
Notice, including a description of the screened lawyer’s
prior representation and of the screening procedures employed,
generally should be given as soon as practicable after the need
for screening becomes apparent.
Paragraph (c) operates only when the lawyer in question
has knowledge of the information, which means actual
knowledge; it does not operate with respect to information that
merely could be imputed to the lawyer.
Paragraphs (a) and (d) do not prohibit a lawyer from
jointly representing a private party and a government agency
when doing so is permitted by Rule 1.7 and is not otherwise
prohibited by law.
For purposes of paragraph (e) of this Rule, a “matter” may
continue in another form. In determining whether two
particular matters are the same, the lawyer should consider the
extent to which the matters involve the same basic facts, the
same or related parties, and the time elapsed.
Rule 1.12. Former Judge, Arbitrator, Mediator, or
Other Third-Party Neutral.
Rule 1.13 ALASKA COURT RULES
28
(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, 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, 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 clerk 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 of the screening procedures is
promptly given to the parties and to any tribunal considering
the matter.
(d) An arbitrator selected as a partisan of a party in a
multi-member arbitration panel is not prohibited from
subsequently representing that party.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated effective April 15, 2009; amended by SCO
1984 effective October 5, 2022)
COMMENT
This Rule generally parallels Rule 1.11. The term
“personally and substantially” signifies that a judge who was a
member of a multi-member court, and thereafter left judicial
office to practice law, is not prohibited from representing a
client in a matter pending in the court, but in which the former
judge did not participate. So also the fact that a former judge
exercised administrative responsibility in a court does not
prevent the former judge from acting as a lawyer in a matter
where the judge had previously exercised remote or incidental
administrative responsibility that did not affect the merits.
Compare the COMMENT to Rule 1.11. The term “adjudicative
officer” includes such officials as judges pro tempore, referees,
special masters, hearing officers and other parajudicial
officers, and also lawyers who serve as part-time judges. The
Application section of the Alaska Code of Judicial Conduct,
section D(3), provides that a lawyer who serves as a special
master in a proceeding shall not “act as a lawyer in that
proceeding or in any other proceeding related thereto” except
as otherwise permitted by paragraph (a) of this rule. Although
phrased differently from this Rule, those Rules correspond in
meaning.
Like former judges, lawyers who have served as
arbitrators, mediators or other third-party neutrals may be
asked to represent a client in a matter in which the lawyer
participated personally and substantially. This Rule forbids
such representation unless all of the parties to the proceedings
give their informed consent, confirmed in writing. See Rule
9.1(g) and (c). Other law or codes of ethics governing third-
party neutrals may impose more stringent standards of personal
or imputed disqualification. See Rule 2.4.
Although lawyers who serve as third-party neutrals do not
have information concerning the parties that is protected under
Rule 1.6, they typically owe the parties an obligation of
confidentiality under law or codes of ethics governing third-
party neutrals. Thus, paragraph (c) provides that conflicts of
the personally disqualified lawyer will be imputed to other
lawyers in a law firm unless the conditions of this paragraph
are met.
Requirements for screening procedures are stated in Rule
9.1(q). Paragraph (c)(1) does not prohibit the screened lawyer
from receiving a salary or partnership share established by
prior independent agreement, but that lawyer may not receive
compensation directly related to the matter in which the lawyer
is disqualified.
Notice, including a description of the screened lawyer’s
prior representation and of the screening procedures employed,
generally should be given as soon as practicable after the need
for screening becomes apparent.
Cross reference: Canon 3E(1)(b), Alaska Code of Judicial
Conduct: “Unless [the ground] for disqualification [is] waived
as permitted by [Canon]3F, a judge shall disqualify himself or
herself in a proceeding in which…the judge served as a lawyer
in the matter in controversy, or a lawyer with whom the judge
previously practiced law served during their association as a
lawyer concerning the matter, or the judge has been a material
witness concerning [the matter].”
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 conduct or intends to engage in conduct (whether
act or omission) related to the representation that violates a
legal obligation to the organization, or that constitutes a viola-
tion of law that might reasonably be imputed to the
organization, and that this conduct is likely to result in
substantial injury to the organization, then the lawyer shall take
the steps reasonably necessary to protect the best interest of the
organization.
In determining how to proceed, the lawyer shall give due
consideration to:
(1) the seriousness of the violation and its consequences,
PROFESSIONAL CONDUCT Rule 1.13
29
(2) the scope and nature of the lawyer’s representation,
(3) the person’s responsibility within the organization
and the person’s apparent motivation,
(4) the policies of the organization concerning such
matters, and
(5) any other relevant considerations.
Any measures taken by the lawyer shall be designed to
minimize disruption of the organization and the risk of
revealing client confidences and secrets 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.
The lawyer shall refer the matter to higher authority in the
organization, including, if warranted by the circumstances, to
the highest authority that can act on behalf of the organization
as determined by applicable law, unless the lawyer reasonably
believes that this is not necessary or is not in the best interest
of the organization.
(c) Except as provided in paragraph (d), if
(1) despite the lawyer’s efforts in accordance with
paragraph (b), the highest authority that can act on behalf of
the organization insists upon or fails to timely and
appropriately rectify a threatened or ongoing action, or a
refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is
reasonably certain to result in substantial injury to the
organization, then the lawyer may reveal client confidences
and secrets, whether or not Rule 1.6 would permit the
disclosures, but only if and to the extent the lawyer reasonably
believes necessary to prevent substantial injury to the
organization.
(d) Paragraph (c) does not apply to client confidences
and secrets relating to a lawyer’s representation of an
organization to investigate an alleged violation of law, or to
defend the organization or an officer, employee, or other
constituent associated with the organization against a claim
arising out of an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has
been discharged because of the lawyer’s actions taken pursuant
to paragraphs (b) or (c), or who withdraws under circum-
stances that require or permit the lawyer to take action under
either of those paragraphs, shall proceed as the lawyer
reasonably believes necessary to assure that the organization’s
highest authority is informed of the circumstances of the
lawyer’s discharge or withdrawal.
(f) 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.
(g) 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.
(h) “Constituents” denotes officers, directors, employees
and shareholders of a corporate client, or positions equivalent
to officers, directors, employees, and shareholders held by
persons acting for an organizational client that is not a
corporation.
(SCO 1123 effective July 15, 1993; amended by SCO 1332
effective January 15, 1999; rescinded and repromulgated by
SCO 1680 effective April 15, 2009)
COMMENT
The Entity as the Client
An organizational client is a legal entity, but it cannot act
except through its officers, directors, employees, shareholders
and other constituents. The duties defined in this COMMENT
apply equally to unincorporated associations.
When one of the constituents of an organizational client
communicates with the organization’s lawyer in that person’s
organizational capacity, the lawyer’s disclosure of that
communication is governed by Rule 1.6. Thus, by way of
example, if an organizational client requests its lawyer to
investigate allegations of wrongdoing, disclosure of interviews
made in the course of that investigation between the lawyer
and the client’s employees or other constituents are governed
by Rule 1.6. This does not mean, however, that constituents of
an organizational client are the clients of the lawyer. The
lawyer may not disclose to those constituents the client’s
confidences and secrets except for disclosures explicitly or
impliedly authorized by the organizational client in order to
carry out the representation or as otherwise permitted by Rule
1.6.
When constituents of the organization make decisions for
it, the decisions ordinarily must be accepted by the lawyer
even if their utility or prudence is doubtful. Decisions
concerning policy and operations, including ones entailing
serious risk, are not as such in the lawyer’s province.
Paragraph (b) makes clear, however, that when the lawyer
knows that the organization is likely to be substantially injured
by action of an officer or other constituent that violates a legal
obligation to the organization or is in violation of law that
might be imputed to the organization, the lawyer must proceed
as is reasonably necessary in the best interest of the
Rule 1.13 ALASKA COURT RULES
30
organization. As defined in Rule 9.1(h), knowledge can be
inferred from circumstances, and a lawyer cannot ignore the
obvious.
In determining how to proceed under paragraph (b), the
lawyer should give due consideration to the seriousness of the
violation and its consequences, 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. Ordinarily,
referral to a higher authority will be necessary. In some
circumstances, however, it may be appropriate for the lawyer
merely to ask the constituent to reconsider the matter; for
example, if the circumstances involve a constituent’s innocent
misunderstanding of law and subsequent acceptance of the
lawyer’s advice, the lawyer may reasonably conclude that the
best interest of the organization does not require that the matter
be referred to higher authority. If a constituent persists in
conduct contrary to the lawyer’s advice, it will be necessary
for the lawyer to take steps to have the matter reviewed by a
higher authority in the organization. If the matter is of
sufficient seriousness and importance or urgency to the
organization, referral to higher authority in the organization
may be necessary even if the lawyer has not communicated
with the constituent. Any measures taken should, to the extent
practicable, minimize the risk of revealing client confidences
and secrets to persons outside the organization. Even in
circumstances where a lawyer is not obligated by Rule 1.13 to
proceed, a lawyer may bring to the attention of an
organizational client, including its highest authority, matters
that the lawyer reasonably believes to be of sufficient
importance to warrant doing so in the best interest of the
organization.
Paragraph (b) also makes clear that when it is reasonably
necessary to enable the organization to address the matter in a
timely and appropriate manner, the lawyer must refer the
matter to higher authority, including, if warranted by the
circumstances, the highest authority that can act on behalf of
the organization under applicable law. The organization’s
highest authority to whom a matter may be referred ordinarily
will be the board of directors or similar governing body.
However, applicable law may prescribe that under certain
conditions the highest authority reposes elsewhere, for
example, in the independent directors of a corporation.
Relation to Other Rules
The authority and responsibility provided in this Rule are
concurrent with the authority and responsibility provided in
other Rules. In particular, this Rule does not limit or expand
the lawyer’s responsibility under Rules 1.8, 1.16, 3.3, or 4.1.
Paragraph (c) of this Rule supplements Rule 1.6(b) by
providing an additional basis upon which the lawyer may
reveal client confidences and secrets, but does not modify,
restrict, or limit the provisions of Rule 1.6(b)(1)–(6). Under
paragraph (c) the lawyer may reveal such information only
when the organization’s highest authority insists upon or fails
to address threatened or ongoing action that is clearly a
violation of law, and then only to the extent the lawyer
reasonably believes necessary to prevent reasonably certain
substantial injury to the organization. It is not necessary that
the lawyer’s services be used in furtherance of the violation,
but it is required that the matter be related to the lawyer’s
representation of the organization. If the lawyer’s services are
being used by an organization to further a crime or fraud by the
organization, Rules 1.6(b)(2) and 1.6(b)(3) may permit the
lawyer to disclose confidential information. In such circum-
stances Rule 1.2(d) may also be applicable, in which event,
withdrawal from the representation under Rule 1.16(a)(1) may
be required.
Paragraph (d) makes clear that the authority of a lawyer to
disclose client confidences and secrets in circumstances
described in paragraph (c) does not apply with respect to
information relating to a lawyer’s engagement by an
organization to investigate an alleged violation of law or to
defend the organization or an officer, employee, or other
person associated with the organization against a claim arising
out of an alleged violation of law. This is necessary in order to
enable organizational clients to enjoy the full benefits of legal
counsel in conducting an investigation or defending against a
claim.
A lawyer who reasonably believes that he or she has been
discharged because of the lawyer’s actions taken pursuant to
paragraph (b) or (c), or who withdraws in circumstances that
require or permit the lawyer to take action under either of these
paragraphs, must proceed as the lawyer reasonably believes
necessary to assure that the organization’s highest authority is
informed of the circumstances of the lawyer’s discharge or
withdrawal.
Government Agency
The duty defined in this Rule applies to lawyers employed
or retained by governmental organizations. Defining precisely
the identity of the client and prescribing the resulting
obligations of the lawyers may be more difficult in the
government context and these matters are beyond the scope of
these Rules. See Scope. Although in some circumstances the
client may be a specific agency, it may also be a branch of
government, such as the executive branch, or the government
as a whole. For example, if the action or failure to act involves
the head of a bureau, either the department of which the bureau
is a part or the relevant branch of government may be the client
for purposes of this Rule. Moreover, in a matter involving the
conduct of government officials, a government lawyer may
have authority under applicable law to question such conduct
more extensively than that of a lawyer for a private
organization in similar circumstances. Thus, when the client is
a governmental organization, a different balance may be
appropriate between maintaining confidentiality and assuring
that the wrongful act is prevented or rectified, for public
business is involved. In addition, duties of lawyers employed
by the government or lawyers in military service may be
defined by statutes and regulation. This Rule does not limit
that authority. See Scope.
Clarifying the Lawyer’s Role
There are times when the organization’s interest may be
or become adverse to those of one or more of its constituents.
In such circumstances the lawyer should advise any
PROFESSIONAL CONDUCT Rule 1.14
31
constituent, whose interest the lawyer finds adverse to that of
the organization of the conflict or potential conflict of interest,
that the lawyer cannot represent such constituent, and that such
person may wish to obtain independent representation. Care
must be taken to assure that the individual understands that,
when there is such adversity of interest, the lawyer for the
organization cannot provide legal representation for that
constituent individual, and that discussions between the lawyer
for the organization and the individual may not be privileged.
Whether such a warning should be given by the lawyer for
the organization to any constituent individual may turn on the
facts of each case.
Dual Representation
Paragraph (e) recognizes that a lawyer for an organization
may also represent a principal officer or major shareholder.
Derivative Actions
Under generally prevailing law, the shareholders or
members of a corporation may bring suit to compel the
directors to perform their legal obligations in the supervision
of the organization. Members of unincorporated associations
have essentially the same right. Such an action may be brought
nominally by the organization, but usually is, in fact, a legal
controversy over management of the organization.
The question can arise whether counsel for the
organization may defend such an action. The proposition that
the organization is the lawyer’s client does not alone resolve
the issue. Most derivative actions are a normal incident of an
organization’s affairs, to be defended by the organization’s
lawyer like any other suit. However, if the claim involves
serious charges of wrongdoing by those in control of the
organization, a conflict may arise between the lawyer’s duty to
the organization and the lawyer’s relationship with the board.
In those circumstances, Rule 1.7 governs who should represent
the directors and the organization.
Rule 1.14. Client With Impaired Capacity.
(a) When a client’s capacity to make adequately
considered decisions in connection with a representation is
impaired, 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 impaired capacity, that the client is at risk of substantial
physical, financial, or other harm unless action is taken, and
that the client cannot 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) The confidences and secrets of a client with impaired
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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
The normal client-lawyer relationship is based on the
assumption that the client, when properly advised and assisted,
is capable of making decisions about important matters. When
the client is a minor or suffers from an impaired mental
capacity, however, maintaining the ordinary client-lawyer
relationship may not be possible in all respects. In particular, a
severely incapacitated person may have no power to make
legally binding decisions. Nevertheless, a client with impaired
capacity often has the ability to understand, deliberate upon,
and reach conclusions about matters affecting the client’s own
well-being. For example, children as young as five or six years
of age, and certainly those of ten or twelve, are regarded as
having opinions that are entitled to weight in legal proceedings
concerning their custody. So also, it is recognized that some
persons of advanced age can be quite capable of handling
routine financial matters while needing special legal protection
concerning major transactions.
The fact that a client suffers an impairment does not
diminish the lawyer’s obligation to treat the client with
attention and respect. Even if the person has a legal
representative, the lawyer should as far as possible accord the
represented person the status of client, particularly in
maintaining communication.
The client may wish to have family members or other
persons participate in discussions with the lawyer. When
necessary to assist in the representation, the presence of such
persons generally does not affect the applicability of the
attorney-client evidentiary privilege. See Alaska Evidence
Rule 503. Nevertheless, the lawyer must keep the client’s
interests foremost and, except for protective action authorized
under paragraph (b), must to look to the client, and not family
members, to make decisions on the client’s behalf.
If a legal representative has already been appointed for the
client, the lawyer should ordinarily look to the representative
for decisions on behalf of the client. In matters involving a
minor, whether the lawyer should look to the parents as natural
guardians may depend on the type of proceeding or matter in
which the lawyer is representing the minor. If the lawyer
represents the guardian as distinct from the ward, and is aware
that the guardian is acting adversely to the ward’s interest, the
lawyer may have an obligation to prevent or rectify the
guardian’s misconduct. See Rule 1.2(d).
Taking Protective Action
If a lawyer reasonably believes that a client is at risk of
substantial physical, financial or other harm unless action is
taken, and that a normal client-lawyer relationship cannot be
maintained as provided in paragraph (a) because the client
Rule 1.15 ALASKA COURT RULES
32
lacks sufficient capacity to communicate or to make
adequately considered decisions in connection with the
representation, then paragraph (b) permits the lawyer to take
protective measures deemed necessary. Such measures could
include: consulting with family members, using a
reconsideration period to permit clarification or improvement
of circumstances, using voluntary surrogate decisionmaking
tools such as durable powers of attorney or consulting with
support groups, professional services, adult-protective
agencies, or other individuals or entities that have the ability to
protect the client. In taking any protective action, the lawyer
should be guided by such factors as the wishes and values of
the client to the extent known, the client’s best interests and the
goals of intruding into the client’s decisionmaking autonomy
to the least extent feasible, maximizing client capacities and
respecting the client’s family and social connections.
In determining the extent of the client’s impaired capacity,
the lawyer should consider and balance such factors as: the
client’s ability to articulate reasoning leading to a decision,
variability of state of mind and ability to appreciate
consequences of a decision; the substantive fairness of a
decision; and the consistency of a decision with the known
long-term commitments and values of the client. In appropriate
circumstances, the lawyer may seek guidance from an
appropriate diagnostician.
If a legal representative has not been appointed, the
lawyer should consider whether appointment of a guardian ad
litem, conservator, or guardian is necessary to protect the
client’s interests. Thus, if a client with impaired capacity has
substantial property that should be sold for the client’s benefit,
effective completion of the transaction may require
appointment of a legal representative. In addition, rules of
procedure in litigation sometimes provide that minors or
persons with impaired capacity must be represented by a
guardian or next friend if they do not have a general guardian.
In many circumstances, however, appointment of a legal
representative may be more expensive or traumatic for the
client than circumstances in fact require. Evaluation of such
circumstances is a matter entrusted to the professional
judgment of the lawyer. In considering alternatives, however,
the lawyer should be aware of any law that requires the lawyer
to advocate the least restrictive action on behalf of the client.
Disclosure of the Client’s Condition
Disclosure of the client’s impaired capacity could
adversely affect the client’s interests. For example, raising the
question of impaired capacity could, in some circumstances,
lead to proceedings for involuntary commitment. Client
confidences and secrets are protected by Rule 1.6. Therefore,
unless authorized to do so, the lawyer may not disclose such
information. When taking protective action pursuant to
paragraph (b), the lawyer is impliedly authorized to make the
necessary disclosures, even when the client directs the lawyer
to the contrary. Nevertheless, given the risks of disclosure,
paragraph (c) limits what the lawyer may disclose in
consulting with other individuals or entities or seeking the
appointment of a legal representative. At the very least, the
lawyer should determine whether it is likely that the person or
entity consulted with will act adversely to the client’s interests
before discussing matters related to the client. The lawyer’s
position in such cases is an unavoidably difficult one.
Emergency Legal Assistance
In an emergency where the health, safety, or a financial
interest of a person with seriously impaired capacity is
threatened with imminent and irreparable harm, a lawyer may
take legal action on behalf of such a person even though the
person is unable to establish a client-lawyer relationship or to
make or express considered judgments about the matter, when
the person or another acting in good faith on that person’s
behalf has consulted with the lawyer. Even in such an
emergency, however, the lawyer should not act unless the
lawyer reasonably believes that the person has no other lawyer,
agent or other representative available. The lawyer should take
legal action on behalf of the person only to the extent
reasonably necessary to maintain the status quo or otherwise
avoid imminent and irreparable harm. A lawyer who
undertakes to represent a person in such an exigent situation
has the same duties under these Rules as the lawyer would
with respect to a client.
A lawyer who acts on behalf of a person with seriously
impaired capacity in an emergency should keep the
confidences and secrets of the person as if dealing with a
client, disclosing them only to the extent necessary to
accomplish the intended protective action. The lawyer should
disclose to any tribunal involved and to any other counsel
involved the nature of his or her relationship with the person.
The lawyer should take steps to regularize the relationship or
implement other protective solutions as soon as possible.
Normally, a lawyer would not seek compensation for such
emergency actions taken.
LAW REVIEW COMMENTARIES
“Guilty But Mentally Ill: The Ethical Dilemma of Mental Illness as a Tool
of the Prosecution,” 32 Alaska L. Rev. 1 (2015).
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 a separate account maintained in the state
where the lawyer’s office is situated, or elsewhere with the
consent of the client or the third person. Other property shall
be identified as the client’s or the third person’s and
appropriately safeguarded. Complete records of these 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) A lawyer may deposit the lawyer’s own funds in a
client trust account for the sole purpose of paying bank service
charges on that account, and only in an amount necessary for
that purpose.
(c) A lawyer shall deposit funds received for future fees
and expenses into a client trust account, to be withdrawn by the
lawyer only as fees are earned or expenses incurred.
PROFESSIONAL CONDUCT Rule 1.15
33
(d) 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 the funds or
property.
(e) When in the course of representation a lawyer is in
possession of property in which two or more persons (one of
whom may be the lawyer) claim conflicting interests, the
property shall be kept separate by the lawyer until the dispute
is resolved. The lawyer shall promptly distribute all portions of
the property as to which the interests are not in dispute.
(f) Unless an election not to participate is submitted in
accordance with the procedure set forth in paragraph (g), a
lawyer or law firm shall establish and maintain an interest
bearing insured depository account into which must be
deposited funds of clients which are nominal in amount or are
expected to be held for a short period of time, but only in
compliance with the following provisions:
(1) No earnings from such account shall be made
available to the lawyer or law firm and the lawyer or law firm
shall have no right or claim to such earnings.
(2) Only funds of clients which are nominal in amount or
are expected to be held for a short period of time may be
deposited in such account. Funds which reasonably may be
expected to generate in excess of one hundred dollars interest
may not be deposited in such account.
(3) The depository institution shall be directed by the
lawyer or law firm establishing such account:
(A) To remit earnings from such account, net of any
service charges or fees, as computed in accordance with the
institution’s standard accounting practice to the Alaska Bar
Foundation, Inc., at least quarter-annually; and
(B) To transmit with each remittance of earnings a
statement showing the name of the lawyer or law firm on
whose account the remittance is sent and the rate of interest
applied, with a copy of such statement to such lawyer or law
firm.
(4) The lawyer or law firm shall review the account at
reasonable intervals to determine if changed circumstances
required further action with respect to the funds of any client.
(g) A lawyer shall indicate on the lawyer’s annual bar
dues notice whether the lawyer or the lawyer’s law firm: 1)
elects to maintain the account described in paragraph (f); 2)
elects not to maintain the account described in paragraph (f); or
3) does not maintain a trust account. A lawyer or law firm who
wishes to change a previous election may do so at any time by
notifying the Alaska Bar Association in writing.
(SCO 1123 effective July 15, 1993; amended by SCO 1539
effective October 15, 2004; by SCO 1584 effective October
15, 2005; rescinded and repromulgated by SCO 1680 effective
April 15, 2009)
COMMENT
A lawyer should hold property of others with the care
required of a professional fiduciary. Securities should be kept
in a safe deposit box, except when some other form of
safekeeping is warranted by special circumstances. All
property that is the property of clients or third persons,
including prospective clients, must be kept separate from the
lawyer’s business and personal property and, if monies, in one
or more trust accounts. Separate trust accounts may be
warranted when administering estate monies or acting in
similar fiduciary capacities. A lawyer should maintain on a
current basis books and records in accordance with generally
accepted accounting practice and comply with any
recordkeeping rules established by law or court order. See,
e.g., ABA Model Financial Recordkeeping Rule.
While normally it is impermissible to commingle the
lawyer’s own funds with client funds, paragraph (b) provides
that it is permissible when necessary to pay bank service
charges on that account. Accurate records must be kept
regarding which part of the funds are the lawyer’s.
Lawyers often receive funds from which the lawyer’s fee
will be paid. The lawyer is not required to remit to the client
funds that the lawyer reasonably believes represent fees owed.
If the fee is disputed, the disputed portion of the funds must be
kept in a trust account and the lawyer should suggest means for
prompt resolution of the dispute, such as arbitration. The
undisputed portion of the funds shall be promptly distributed.
Paragraph (e) also recognizes that third parties may have
lawful claims against specific funds or other property in a
lawyer’s custody, such as a client’s creditor who has a lien on
funds recovered in a personal injury action. A lawyer may
have a duty under applicable law to protect such third-party
claims against wrongful interference by the client. In such
cases, when the third-party claim is not frivolous under
applicable law, the lawyer must refuse to surrender the
property to the client until the claims are resolved. A lawyer
should not unilaterally assume to arbitrate a dispute between
the client and the third party, but, when there are substantial
grounds for dispute as to the person entitled to the funds, the
lawyer may file an action to have a court resolve the dispute.
The obligations of a lawyer under this Rule are
independent of those arising from activity other than rendering
legal services. For example, a lawyer who serves only as an
escrow agent is governed by the applicable law relating to
fiduciaries even though the lawyer does not render legal
services in the transaction and is not governed by this Rule.
A lawyers’ fund for client protection provides a means
through the collective efforts of the bar to reimburse persons
who have lost money or property as a result of dishonest
conduct of a lawyer. Where such a fund has been established, a
lawyer must participate where it is mandatory, and, even when
it is voluntary, the lawyer should participate.
Rule 1.16 ALASKA COURT RULES
34
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;
(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. The lawyer may retain papers relating
to the client to the extent permitted by other law.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
A lawyer should not accept representation in a matter
unless it can be performed competently, promptly, without
improper conflict of interest and to completion. Ordinarily, a
representation in a matter is completed when the agreed-upon
assistance has been concluded. See Rules 1.2(c) and 6.5. See
also Rule 1.3, COMMENT.
Mandatory Withdrawal
A lawyer ordinarily must decline or withdraw from
representation if the client demands that the lawyer engage in
conduct that is illegal or violates the Rules of Professional
Conduct or other law. The lawyer is not obliged to decline or
withdraw simply because the client suggests such a course of
conduct; a client may make such a suggestion in the hope that
a lawyer will not be constrained by a professional obligation.
When a lawyer has been appointed to represent a client,
withdrawal ordinarily requires approval of the appointing
authority. See also Rule 6.2. Similarly, court approval or notice
to the court is often required by applicable law before a lawyer
withdraws from pending litigation. Difficulty may be
encountered if withdrawal is based on the client’s demand that
the lawyer engage in unprofessional conduct. The court may
request an explanation for the withdrawal, while the lawyer
may be bound to keep confidential the facts that would
constitute such an explanation. The lawyer’s statement that
professional considerations require termination of the
representation ordinarily should be accepted as sufficient.
Lawyers should be mindful of their obligations to both clients
and the court under Rules 1.6 and 3.3.
Discharge
A client has a right to discharge a retained lawyer at any
time, with or without cause, subject to liability for payment for
the lawyer’s services. Where future dispute about the
withdrawal may be anticipated, it may be advisable to prepare
a written statement reciting the circumstances.
Whether a client can discharge appointed counsel may
depend on applicable law. A client seeking to do so should be
given a full explanation of the consequences. These
consequences may include a decision by the appointing
authority that appointment of successor counsel is unjustified,
thus requiring self-representation by the client.
If the client has severely impaired capacity, the client may
lack the legal capacity to discharge the lawyer, and in any
event the discharge may be seriously adverse to the client’s
interests. The lawyer should make special effort to help the
client consider the consequences and may take reasonably
necessary protective action as provided in Rule 1.14.
Optional Withdrawal
A lawyer may withdraw from representation in some
circumstances. The lawyer has the option to withdraw if it can
be accomplished without material adverse effect on the client’s
interests. Withdrawal is also justified if the client persists in a
course of action that the lawyer reasonably believes is criminal
or fraudulent, for a lawyer is not required to be associated with
such conduct even if the lawyer does not further it. Withdrawal
is also permitted if the lawyer’s services were misused in the
past even if that would materially prejudice the client. The
PROFESSIONAL CONDUCT Rule 1.17
35
lawyer may also withdraw where the client insists on taking
action that the lawyer considers repugnant or with which the
lawyer has a fundamental disagreement.
A lawyer may withdraw if the client refuses to abide by
the terms of an agreement relating to the representation, such
as an agreement concerning fees or court costs or an agreement
limiting the objectives of the representation.
Assisting the Client upon Withdrawal
Even if the lawyer has been unfairly discharged by the
client, a lawyer must take all reasonable steps to mitigate the
consequences to the client. The lawyer may retain papers as
security for a fee only to the extent permitted by law. See Rule
1.15.
Rule 1.17. Sale of Law Practice.
A lawyer or a law firm may sell or purchase a law
practice, or an area of law practice, including good will, if the
following conditions are satisfied:
(a) The seller ceases to engage in the private practice of
law, or in the area of practice that has been sold, in the judicial
district in which the practice has been conducted;
(b) The entire practice, or the entire area of practice, is
sold to one or more lawyers or law firms;
(c) The seller gives written notice to each of the seller’s
clients regarding:
(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 transfer of the
client’s files 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 client confidences
and secrets 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.
(SCO 1123 effective July 15, 1993; amended by SCO 1332
effective January 15, 1999; rescinded and repromulgated by
SCO 1680 effective April 15, 2009; amended by SCO 1905
effective October 15, 2017)
COMMENT
The practice of law is a profession, not merely a business.
Clients are not commodities that can be purchased and sold at
will. Pursuant to this Rule, when a lawyer or an entire firm
ceases to practice, or ceases to practice in an area of law, and
other lawyers or firms take over the representation, the selling
lawyer or firm may obtain compensation for the reasonable
value of the practice as may withdrawing partners of law firms.
See Rules 5.4 and 5.6.
Termination of Practice by the Seller
The requirement that all of the private practice, or all of an
area of practice, be sold is satisfied if the seller in good faith
makes the entire practice, or the area of practice, available for
sale to the purchasers. The fact that a number of the seller’s
clients decide not to be represented by the purchasers but take
their matters elsewhere, therefore, does not result in a
violation. Return to private practice as a result of an
unanticipated change in circumstances does not necessarily
result in a violation. For example, a lawyer who has sold the
practice to accept an appointment to judicial office does not
violate the requirement that the sale be attendant to cessation
of practice if the lawyer later resumes private practice upon
being defeated in a contested or a retention election for the
office or resigns from a judiciary position.
The requirement that the seller cease to engage in the
private practice of law does not prohibit employment as a
lawyer on the staff of a public agency or a legal services entity
that provides legal services to the poor, or as in-house counsel
to a business.
The Rule permits a sale of an entire practice attendant
upon retirement from the private practice of law within the
jurisdiction. Its provisions, therefore, accommodate the lawyer
who sells the practice on the occasion of moving to another
state. Some states are so large that a move from one locale
therein to another is tantamount to leaving the jurisdiction in
which the lawyer has engaged in the practice of law. To also
accommodate lawyers so situated, states may permit the sale of
the practice when the lawyer leaves the geographical area
rather than the jurisdiction. The alternative desired should be
indicated by selecting one of the two provided for in Rule
1.17(a).
This Rule also permits a lawyer or law firm to sell an area
of practice. If an area of practice is sold and the lawyer
remains in the active practice of law, the lawyer must cease
accepting any matters in the area of practice that has been sold,
either as counsel or co-counsel or by assuming joint
responsibility for a matter in connection with the division of a
fee with another lawyer as would otherwise be permitted by
Rule 1.5(e). For example, a lawyer with a substantial number
of estate planning matters and a substantial number of probate
administration cases may sell the estate planning portion of the
practice but remain in the practice of law by concentrating on
probate administration; however, that practitioner may not
thereafter accept any estate planning matters. Although a
lawyer who leaves a jurisdiction or geographical area typically
would sell the entire practice, this Rule permits the lawyer to
limit the sale to one or more areas of the practice, thereby
preserving the lawyer’s right to continue practice in the areas
of the practice that were not sold.
Sale of Entire Practice or Entire Area of Practice
Rule 1.18 ALASKA COURT RULES
36
The Rule requires that the seller’s entire practice, or an
entire area of practice, be sold. The prohibition against sale of
less than an entire practice area protects those clients whose
matters are less lucrative and who might find it difficult to
secure other counsel if a sale could be limited to substantial
fee-generating matters. The purchasers are required to
undertake all client matters in the practice or practice area,
subject to client consent. This requirement is satisfied,
however, even if a purchaser is unable to undertake a particular
client matter because of a conflict of interest.
Client Confidences and Secrets, Consent, and Notice
Negotiations between seller and prospective purchaser
prior to disclosure of the confidences and secrets of an
identifiable client do not violate the confidentiality provisions
of Rule 1.6. Providing the purchaser access to detailed
confidences and secrets, such as the client’s file, however,
requires client consent. The Rule provides that before such
information can be disclosed by the seller to the purchaser the
client must be given actual written notice of the contemplated
sale, including the identity of the purchaser, and must be told
that the decision to consent or make other arrangements must
be made within 90 days. If nothing is heard from the client
within that time, consent to the sale is presumed.
A lawyer or law firm ceasing to practice cannot be
required to remain in practice because some clients cannot be
given actual notice of the proposed purchase. Since these
clients cannot themselves consent to the purchase or direct any
other disposition of their files, the Rule requires an order from
a court having jurisdiction authorizing their transfer or other
disposition. The Court can be expected to determine whether
reasonable efforts to locate the client have been exhausted, and
whether the absent client’s legitimate interests will be served
by authorizing the transfer of the file so that the purchaser may
continue the representation. Preservation of client confidences
and secrets requires that the petition for a court order be
considered in camera.
All elements of client autonomy, including the client’s
absolute right to discharge a lawyer and transfer the
representation to another, survive the sale of the practice or
area of practice.
Fee Arrangements Between Client and Purchaser
The sale may not be financed by increases in fees charged
the clients of the practice. Existing arrangements between the
seller and the client as to fees and the scope of the work must
be honored by the purchaser.
Other Applicable Ethical Standards
Lawyers participating in the sale of a law practice or a
practice area are subject to the ethical standards applicable to
involving another lawyer in the representation of a client.
These include, for example, the seller’s obligation to exercise
competence in identifying a purchaser qualified to assume the
practice and the purchaser’s obligation to undertake the
representation competently (see Rule 1.1); the obligation to
avoid disqualifying conflicts, and to secure the client’s
informed consent for those conflicts that can be agreed to (see
Rule 1.7 regarding conflicts and Rule 9.1(g) for the definition
of informed consent); and the obligation to protect confidences
and secrets (see Rules 1.6 and 1.9).
If approval of the substitution of the purchasing lawyer for
the selling lawyer is required by the rules of any tribunal in
which a matter is pending, such approval must be obtained
before the matter can be included in the sale (see Rule 1.16).
Applicability of the Rule
This Rule applies to the sale of a law practice of a
deceased, disabled, or disappeared lawyer. Thus, the seller may
be represented by a non-lawyer representative not subject to
these Rules. Since, however, no lawyer may participate in a
sale of a law practice which does not conform to the
requirements of this Rule, the representatives of the seller as
well as the purchasing lawyer can be expected to see to it that
they are met.
The following arrangements do not constitute a sale or
purchase governed by this Rule: (1) admission to or retirement
from a law firm, including retirement and similar plans, (2)
mergers of law firms, by acquisition or otherwise, and (3)
conveyance of tangible assets of a law firm.
This Rule does not apply to the transfers of legal
representation between lawyers when such transfers are
unrelated to the sale of a practice or an area of practice.
Rule 1.18. Duties to Prospective Client.
(a) A person who consults 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 learned information from a prospective client
shall not use or reveal that information, 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 the prospective client 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 that matter,
except as provided in paragraph (d).
(d) When the lawyer has received disqualifying
information as defined in paragraph (c), representation is
permissible if:
(1) both the affected client and the prospective client
have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took
reasonable measures to avoid exposure to more disqualifying
information than was reasonably necessary to determine
PROFESSIONAL CONDUCT Rule 2.1
37
whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee
therefrom; and
(ii) written notice is promptly given to the prospective
client.
(Added by SCO 1680 effective April 15, 2009; and amended
by SCO 1905 effective October 15, 2017; and by SCO 1984
effective October 5, 2022)
COMMENT
Prospective clients, like clients, may disclose information
to a lawyer, place documents or other property in the lawyer’s
custody, or rely on the lawyer’s advice. A lawyer’s
consultations with a prospective client usually are limited in
time and depth and leave both the prospective client and the
lawyer free (and sometimes required) to proceed no further.
Hence, prospective clients should receive some but not all of
the protection afforded clients.
A person becomes a prospective client by consulting with
a lawyer about the possibility of forming a client-lawyer
relationship with respect to a matter. Whether
communications, including written, oral, or electronic
communications, constitute a consultation depends on the
circumstances. For example, a consultation is likely to have
occurred if a lawyer, either in person or through the lawyer’s
advertising in any medium, specifically requests or invites the
submission of information about a potential representation
without clear and reasonably understandable warnings and
cautionary statements that limit the lawyer’s obligations, and a
person provides information in response. See also Comment
below (on avoiding acquiring disqualifying information). In
contrast, a consultation does not occur if a person provides
information to a lawyer in response to advertising that merely
describes the lawyer’s education, experience, areas of practice,
and contact information, or provides legal information of
general interest. Such a person communicates information
unilaterally to a lawyer, without any reasonable expectation
that the lawyer is willing to discuss the possibility of forming a
client-lawyer relationship, and is thus not a “prospective
client.” Moreover, a person who communicates with a lawyer
for the purpose of disqualifying the lawyer is not a
“prospective client.” Merely opening and reading an
unsolicited email from a person seeking the services of a
lawyer does not create a “prospective client” relationship.
It is often necessary for a prospective client to reveal
information to the lawyer during an initial consultation prior to
the decision about formation of a client-lawyer relationship.
The lawyer often must learn such information to determine
whether there is a conflict of interest with an existing client
and whether the matter is one that the lawyer is willing to
undertake. Paragraph (b) prohibits the lawyer from using or
revealing that information, except as permitted by Rule 1.9,
even if the client or lawyer decides not to proceed with the
representation. The duty exists regardless of how brief the
initial conference may be.
In order to avoid acquiring disqualifying information from
a prospective client, a lawyer considering whether or not to
undertake a new matter should limit the initial consultation to
only such information as reasonably appears necessary for that
purpose. Where the information indicates that a conflict of
interest or other reason for non-representation exists, the
lawyer should so inform the prospective client or decline the
representation. If the prospective client wishes to retain the
lawyer, and if consent is possible under Rule 1.7, then the
lawyer must obtain consent from all affected present or former
clients before accepting the representation.
A lawyer may condition a consultation with a
prospective client on the person’s informed consent that no
information disclosed during the consultation will prohibit the
lawyer from representing a different client in the matter. See
Rule 9.1(g) for the definition of informed consent. If the
agreement expressly so provides, the prospective client may
also consent to the lawyer’s subsequent use of information
received from the prospective client.
Even in the absence of an agreement, under paragraph (c),
the lawyer is not prohibited from representing a client with
interests adverse to those of the prospective client in the same
or a substantially related matter unless the lawyer has received
from the prospective client information that could be
significantly harmful if used in the matter.
Under paragraph (c), the prohibition in this Rule is
imputed to other lawyers as provided in Rule 1.10, but, under
paragraph (d)(1), imputation may be avoided if the lawyer
obtains the informed consent, confirmed in writing, of both the
prospective and affected clients. In the alternative, imputation
may be avoided if the conditions of paragraph (d)(2) are met
and all disqualified lawyers are timely screened and written
notice is promptly given to the prospective client. See Rule
9.1(q) (requirements for screening procedures). Paragraph
(d)(2)(i) does not prohibit the screened lawyer from receiving a
salary or partnership share established by prior independent
agreement, but that lawyer may not receive compensation
directly related to the matter in which the lawyer is
disqualified.
Notice, including a general description of the subject
matter about which the lawyer was consulted, and of the
screening procedures employed, generally should be given as
soon as practicable after the need for screening becomes
apparent.
For the duty of competence of a lawyer who gives
assistance on the merits of a matter to a prospective client, see
Rule 1.1. For a lawyer’s duties when a prospective client
entrusts valuables or papers to the lawyer’s care, see Rule 1.15.
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
Rule 2.2 ALASKA COURT RULES
38
political factors, and the availability of alternative forms of
dispute resolution, that may be relevant to the client’s
situation.
(SCO 1123 effective July 15, 1993; amended by SCO 1354
effective October 15, 1999; rescinded and repromulgated by
SCO 1680 effective April 15, 2009)
ALASKA COMMENT
In a matter involving or expected to involve litigation, a
lawyer should advise the client of alternative forms of dispute
resolution which might reasonably be pursed to attempt to
resolve the legal dispute or to reach the legal objective sought.
COMMENT
Scope of Advice
A client is entitled to straightforward advice expressing
the lawyer’s honest assessment. Legal advice often involves
unpleasant facts and alternatives that a client may be
disinclined to confront. In presenting advice, a lawyer
endeavors to sustain the client’s morale and may put advice in
as acceptable a form as honesty permits. However, a lawyer
should not be deterred from giving candid advice by the
prospect that the advice will be unpalatable to the client.
Advice couched in narrow legal terms may be of little
value to a client, especially where practical considerations,
such as cost or effects on other people, are predominant. Purely
technical legal advice, therefore, can sometimes be inadequate.
It is proper for a lawyer to refer to relevant moral and ethical
considerations in giving advice. Although a lawyer is not a
moral advisor as such, moral and ethical considerations
impinge upon most legal questions and may decisively
influence how the law will be applied.
A client may expressly or impliedly ask the lawyer for
purely technical advice. When such a request is made by a
client experienced in legal matters, the lawyer may accept it at
face value. When such a request is made by a client
inexperienced in legal matters, however, the lawyer’s
responsibility as advisor may include indicating that more may
be involved than strictly legal considerations.
Matters that go beyond strictly legal questions may also
be in the domain of another profession. Family matters can
involve problems within the professional competence of
psychiatry, clinical psychology or social work; business
matters can involve problems within the competence of the
accounting profession or of financial specialists. Where
consultation with a professional in another field is itself
something a competent lawyer would recommend, the lawyer
should make such a recommendation. At the same time, a
lawyer’s advice at its best often consists of recommending a
course of action in the face of conflicting recommendations of
experts.
Offering Advice
In general, a lawyer is not expected to give advice until
asked by the client. However, when a lawyer knows that a
client proposes a course of action that is likely to result in
substantial adverse legal consequences to the client, the
lawyer’s duty to the client under Rule 1.4 may require that the
lawyer offer advice if the client’s course of action is related to
the representation. Similarly, when a matter is likely to involve
litigation, it may be necessary under Rule 1.4 to inform the
client of forms of dispute resolution that might constitute
reasonable alternatives to litigation. A lawyer ordinarily has no
duty to initiate investigation of a client’s affairs or to give
advice that the client has indicated is unwanted, but a lawyer
may initiate advice to a client when doing so appears to be in
the client’s interest.
Rule 2.2. [Deleted]
(SCO 1123 effective July 15, 1993; amended by SCO 1332
effective January 15, 1999; deleted by SCO 1680 effective
April 15, 2009)
Rule 2.3. 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.
(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, confidences and secrets relating to
the evaluation are otherwise protected by Rule 1.6.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
Definition
An evaluation may be performed at the client’s direction
or when impliedly authorized in order to carry out the
representation. See Rule 1.2. Such an evaluation may be for
the primary purpose of establishing information for the benefit
of third parties; for example, an opinion concerning the title of
property rendered at the behest of a vendor for the information
of a prospective purchaser, or at the behest of a borrower for
the information of a prospective lender. In some situations, the
evaluation may be required by a government agency; for
example, an opinion concerning the legality of the securities
registered for sale under the securities laws. In other instances,
the evaluation may be required by a third person, such as a
purchaser of a business.
A legal evaluation should be distinguished from an
investigation of a person with whom the lawyer does not have
a client-lawyer relationship. For example, a lawyer retained by
a purchaser to analyze a vendor’s title to property does not
have a client-lawyer relationship with the vendor. So also, an
PROFESSIONAL CONDUCT Rule 2.4
39
investigation into a person’s affairs by a government lawyer, or
by special counsel employed by the government, is not an
evaluation as that term is used in this Rule. The question is
whether the lawyer is retained by the person whose affairs are
being examined. When the lawyer is retained by that person,
the general rules concerning loyalty to client and preservation
of confidences and secrets apply, which is not the case if the
lawyer is retained by someone else. For this reason, it is
essential to identify the person by whom the lawyer is retained.
This should be made clear not only to the person under
examination, but also to others to whom the results are to be
made available.
Duties Owed to Third Person and Client
When the evaluation is intended for the information or use
of a third person, a legal duty to that person may or may not
arise. That legal question is beyond the scope of this Rule.
However, since such an evaluation involves a departure from
the normal client-lawyer relationship, careful analysis of the
situation is required. The lawyer must be satisfied as a matter
of professional judgment that making the evaluation is
compatible with other functions undertaken in behalf of the
client. For example, if the lawyer is acting as advocate in
defending the client against charges of fraud, it would
normally be incompatible with that responsibility for the
lawyer to perform an evaluation for others concerning the
same or a related transaction. Assuming no such impediment is
apparent, however, the lawyer should advise the client of the
implications of the evaluation, particularly the lawyer’s
responsibilities to third persons and the duty to disseminate the
findings.
Access to and Disclosure of Information
The quality of an evaluation depends on the freedom and
extent of the investigation upon which it is based. Ordinarily a
lawyer should have whatever latitude of investigation seems
necessary as a matter of professional judgment. Under some
circumstances, however, the terms of the evaluation may be
limited. For example, certain issues or sources may be
categorically excluded, or the scope of search may be limited
by time constraints or the noncooperation of persons having
relevant information. Any such limitations that are material to
the evaluation should be described in the report. If after a
lawyer has commenced an evaluation, the client refuses to
comply with the terms upon which it was understood the
evaluation was to have been made, the lawyer’s obligations are
determined by law, having reference to the terms of the client’s
agreement and the surrounding circumstances. In no
circumstances is the lawyer permitted to knowingly make a
false statement of material fact or law in providing an
evaluation under this Rule. See Rule 4.1.
Obtaining Client’s Informed Consent
Confidences and secrets relating to an evaluation are
protected by Rule 1.6. In many situations, providing an
evaluation to a third party poses no significant risk to the
client; thus, the lawyer may be impliedly authorized to disclose
information to carry out the representation. See Rule 1.6(a).
Where, however, it is reasonably likely that providing the
evaluation will affect the client’s interests materially and
adversely, the lawyer must first obtain the client’s consent after
the client has been adequately informed concerning the
important possible effects on the client’s interests. See Rules
1.6(a) and 9.1(g).
Financial Auditors’ Requests for Information
When a question concerning the legal situation of a client
arises at the instance of the client’s financial auditor and the
question is referred to the lawyer, the lawyer’s response may
be made in accordance with procedures recognized in the legal
profession. Such a procedure is set forth in the American Bar
Association Statement of Policy Regarding Lawyers’
Responses to Auditors’ Requests for Information, adopted in
1975.
Rule 2.4. Lawyer 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, a mediator, or in any other
capacity that enables the lawyer to assist the parties to resolve
the matter.
(b) A lawyer serving as a third-party neutral shall inform
unrepresented parties that the lawyer is not representing them.
When the lawyer knows or reasonably should know that a
party does not understand the lawyer’s role in the matter, 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.
(Added by SCO 1680 effective April 15, 2009; amended by
SCO 1984 effective October 5, 2022)
COMMENT
Alternative dispute resolution has become a substantial
part of the civil justice system. Aside from representing clients
in dispute-resolution processes, lawyers often serve as third-
party neutrals. A third-party neutral is a person, such as a
mediator, arbitrator, conciliator, or evaluator, who assists the
parties, represented or unrepresented, in the resolution of a
dispute or in the arrangement of a transaction. Whether a third-
party neutral serves primarily as a facilitator, evaluator, or
decisionmaker depends on the particular process that is either
selected by the parties or mandated by a court.
The role of a third-party neutral is not unique to lawyers,
although, in some court-connected contexts, only lawyers are
allowed to serve in this role or to handle certain types of cases.
In performing this role, the lawyer may be subject to court
rules or other law that apply either to third-party neutrals
generally or to lawyers serving as third-party neutrals. Lawyer-
neutrals may also be subject to various codes of ethics, such as
the Code of Ethics for Arbitration in Commercial Disputes
prepared by a joint committee of the American Bar Associa-
tion and the American Arbitration Association or the Model
Standards of Conduct for Mediators jointly prepared by the
Rule 3.1 ALASKA COURT RULES
40
American Bar Association, the American Arbitration Associa-
tion and the Society of Professionals in Dispute Resolution.
Unlike nonlawyers who serve as third-party neutrals,
lawyers serving in this role may experience unique problems
as a result of differences between the role of a third-party
neutral and a lawyer’s service as a client representative. The
potential for confusion is significant when the parties are
unrepresented in the process. Thus, paragraph (b) requires a
lawyer-neutral to inform unrepresented parties that the lawyer
is not representing them. For some parties, particularly parties
who frequently use dispute-resolution processes, this
information will be sufficient. For others, particularly those
who are using the process for the first time, more information
will be required. Where appropriate, the lawyer should inform
unrepresented parties of the important differences between the
lawyer’s role as third-party neutral and a lawyer’s role as a
client representative, including the inapplicability of the
attorney-client evidentiary privilege. The extent of disclosure
required under this paragraph will depend on the particular
parties involved and the subject matter of the proceeding, as
well as the particular features of the dispute-resolution process
selected.
A lawyer who serves as a third-party neutral subsequently
may be asked to serve as a lawyer representing a client in the
same matter. The conflicts of interest that arise for both the
individual lawyer and the lawyer’s law firm are addressed in
Rule 1.12.
Lawyers who represent clients in alternative dispute-
resolution processes are governed by the Rules of Professional
Conduct. When the dispute-resolution process takes place
before a tribunal, as in binding arbitration (see Rule 9.1(u)),
the lawyer’s duty of candor is governed by Rule 3.3.
Otherwise, the lawyer’s duty of candor toward both the third-
party neutral and other parties is governed by Rule 4.1.
ADVOCATE
Rule 3.1. Meritorious Claims and Contentions.
A lawyer shall not bring or defend a proceeding, or assert
or controvert an issue therein, unless there is a non-frivolous
basis in law and fact for doing so, including a good faith
argument for an extension, modification, or reversal of existing
law. A lawyer for the defendant in a criminal proceeding or for
the respondent in a proceeding that could result in
incarceration or involuntary institutionalization may neverthe-
less so defend the proceeding as to require that every element
of the case be established.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
The advocate has a duty to use legal procedure for the
fullest benefit of the client’s cause, but also a duty not to abuse
legal procedure. The law, both procedural and substantive,
establishes the limits within which an advocate may proceed.
However, the law is not always clear and never is static.
Accordingly, in determining the proper scope of advocacy,
account must be taken of the law’s ambiguities and potential
for change.
The filing of an action or defense or similar action taken
for a client is not frivolous merely because the facts have not
first been fully substantiated or because the lawyer expects to
develop vital evidence only by discovery. What is required of
lawyers, however, is that they inform themselves about the
facts of their clients’ cases and the applicable law and
determine that they can make good faith arguments in support
of their clients’ positions. Such action is not frivolous even
though the lawyer believes that the client’s position ultimately
will not prevail. The action is frivolous, however, if the lawyer
is unable either to make a good faith argument on the merits of
the action taken or to support the action taken by a good faith
argument for an extension, modification, or reversal of existing
law.
The lawyer’s obligations under this Rule are subordinate
to federal or state constitutional law that entitles a defendant in
a criminal matter to the assistance of counsel in presenting a
claim or contention that otherwise would be prohibited by this
Rule.
Rule 3.2. Expediting Litigation.
A lawyer shall make reasonable efforts to expedite
litigation consistent with the interests of the client.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
Dilatory practices bring the administration of justice into
disrepute. Although there will be occasions when a lawyer may
properly seek a postponement for personal or professional
reasons, it is not proper for a lawyer to routinely fail to
expedite litigation solely for the convenience of the advocates.
Nor will a failure to expedite be reasonable if done for the
purpose of frustrating an opposing party’s attempt to obtain
rightful redress or repose. It is not a justification that similar
conduct is often tolerated by the bench and bar. The question is
whether a competent lawyer acting in good faith would regard
the course of action as having some substantial purpose other
than delay. Realizing financial or other benefit from otherwise
improper delay in litigation is not a legitimate interest 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
PROFESSIONAL CONDUCT Rule 3.3
41
(3) offer evidence that the lawyer knows to be false. If a
lawyer, the lawyer’s 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 and timely 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, including the
lawyer’s client, intends to engage, is engaging, or has engaged
in criminal or fraudulent conduct related to the proceeding
shall take reasonable and timely 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 are
necessary to enable the tribunal to make an informed decision,
whether or not the facts are adverse to the lawyer’s position.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1984 effective October 5, 2022)
ALASKA COMMENT
See Tyler v. State, 47 P.3d 1095, 1104-09 (Alaska App.
2001), for the Court of Appeals interpretation of this provision.
COMMENT
This Rule governs the conduct of a lawyer who is
representing a client in the proceedings of a tribunal. See Rule
9.1(u) for the definition of “tribunal.” It also applies when the
lawyer is representing a client in an ancillary proceeding
conducted pursuant to the tribunal’s adjudicative authority,
such as a deposition. Thus, for example, paragraph (a)(3)
requires a lawyer to take reasonable remedial measures if the
lawyer comes to know that a client who is testifying in a
deposition has offered evidence that is false.
This Rule sets forth the special duties of lawyers as
officers of the court to avoid conduct that undermines the
integrity of the adjudicative process. A lawyer acting as an
advocate in an adjudicative proceeding has an obligation to
present the client’s case with persuasive force. Performance of
that duty while maintaining confidences and secrets of the
client, however, is qualified by the advocate’s duty of candor
to the tribunal. Consequently, although a lawyer in an
adversary proceeding is not required to present an impartial
exposition of the law or to vouch for the evidence submitted in
a cause, the lawyer must not allow the tribunal to be misled by
false statements of law or fact or evidence that the lawyer
knows to be false.
Representations by a Lawyer
An advocate is responsible for pleadings and other
documents prepared for litigation, but is usually not required to
have personal knowledge of matters asserted therein, for
litigation documents ordinarily present assertions by the client,
or by someone on the client’s behalf, and not assertions by the
lawyer. Compare Rule 3.1. However, an assertion purporting
to be on the lawyer’s own knowledge, as in an affidavit by the
lawyer or in a statement in open court, may properly be made
only when the lawyer knows the assertion is true or believes it
to be true on the basis of a reasonably diligent inquiry. There
are circumstances where failure to make a disclosure is the
equivalent of an affirmative misrepresentation. The obligation
prescribed in Rule 1.2(d) not to counsel a client to commit or
assist the client in committing a fraud applies in litigation.
Regarding compliance with Rule 1.2(d), see the COMMENT
to that Rule.
Legal Argument
Legal argument based on a knowingly false representation
of law constitutes dishonesty toward the tribunal. A lawyer is
not required to make a disinterested exposition of the law, but
must recognize the existence of pertinent legal authorities.
Furthermore, as stated in paragraph (a)(2), an advocate has a
duty to disclose directly adverse authority in the controlling
jurisdiction that has not been disclosed by the opposing party.
The underlying concept is that legal argument is a discussion
seeking to determine the legal premises properly applicable to
the case.
Offering Evidence
Paragraph (a)(3) requires that the lawyer refuse to offer
evidence that the lawyer knows to be false, regardless of the
client’s wishes. This duty is premised on the lawyer’s
obligation as an officer of the court to prevent the trier of fact
from being misled by false evidence. A lawyer does not violate
this Rule if the lawyer offers the evidence for the purpose of
establishing its falsity.
If a lawyer knows that the client intends to testify falsely
or wants the lawyer to introduce false evidence, the lawyer
should seek to persuade the client that the evidence should not
be offered. If the persuasion is ineffective and the lawyer
continues to represent the client, the lawyer must refuse to
offer the false evidence. If only a portion of a witness’s
testimony will be false, the lawyer may call the witness to
testify but may not elicit or otherwise permit the witness to
present the testimony that the lawyer knows is false.
The duties stated in paragraphs (a) and (b) apply to all
lawyers, including defense counsel in criminal cases. In some
jurisdictions, however, courts have construed their constitution
to require counsel to present the accused as a witness or to give
a narrative statement if the accused so desires, even if counsel
knows that the testimony or statement will be false. The
obligation of the advocate under the Rules of Professional
Conduct is subordinate to those requirements. See also
COMMENT.
The prohibition against offering false evidence only
applies if the lawyer knows that the evidence is false. A
Rule 3.4 ALASKA COURT RULES
42
lawyer’s reasonable belief that evidence is false does not
preclude its presentation to the trier of fact. A lawyer’s
knowledge that evidence is false, however, can be inferred
from the circumstances. See Rule 9.1(h). Thus, although a
lawyer should resolve doubts about the veracity of testimony
or other evidence in favor of the client, the lawyer cannot
ignore an obvious falsehood.
Although paragraph (a)(3) prohibits a lawyer from
offering evidence the lawyer knows to be false, it permits the
lawyer to refuse to offer testimony or other proof that the
lawyer reasonably believes is false. Offering such proof may
reflect adversely on the lawyer’s ability to discriminate in the
quality of evidence and thus impair the lawyer’s effectiveness
as an advocate. Because of the special protections historically
provided criminal defendants, however, this Rule does not
permit a lawyer to refuse to offer the testimony of such a client
where the lawyer reasonably believes but does not know that
the testimony will be false. Unless the lawyer knows the
testimony will be false, the lawyer must honor the client’s
decision to testify. See also COMMENT.
Remedial Measures
Having offered material evidence in the belief that it was
true, a lawyer may subsequently come to know that the
evidence is false. Or, a lawyer may be surprised when the
lawyer’s client, or another witness called by the lawyer, offers
testimony the lawyer knows to be false, either during the
lawyer’s direct examination or in response to cross-
examination by the opposing lawyer. In such situations or if
the lawyer knows of the falsity of testimony elicited from the
client during a deposition, the lawyer must take reasonable
remedial measures. In such situations, the advocate’s proper
course is to remonstrate with the client confidentially, advise
the client of the lawyer’s duty of candor to the tribunal and
seek the client’s cooperation with respect to the withdrawal or
correction of the false statements or evidence. If that fails, the
advocate must take further remedial action. If withdrawal from
the representation is not permitted or will not undo the effect
of the false evidence, the advocate must make such disclosure
to the tribunal as is reasonably necessary to remedy the
situation, even if doing so requires the lawyer to reveal
information that otherwise would be protected by Rule 1.6. It
is for the tribunal then to determine what should be done —
making a statement about the matter to the trier of fact,
ordering a mistrial or perhaps nothing.
The disclosure of a client’s false testimony can result in
grave consequences to the client, including not only a sense of
betrayal but also loss of the case and perhaps a prosecution for
perjury. But the alternative is that the lawyer cooperate in
deceiving the court, thereby subverting the truth-finding
process which the adversary system is designed to implement.
See Rule 1.2(d). Furthermore, unless it is clearly understood
that the lawyer will act upon the duty to disclose the existence
of false evidence, the client can simply reject the lawyer’s
advice to reveal the false evidence and insist that the lawyer
keep silent. Thus the client could in effect coerce the lawyer
into being a party to fraud on the court.
Preserving Integrity of Adjudicative Process
Lawyers have a special obligation to protect a tribunal
against criminal or fraudulent conduct that undermines the
integrity of the adjudicative process, such as bribing,
intimidating or otherwise unlawfully communicating with a
witness, juror, court official or other participant in the
proceeding, unlawfully destroying or concealing documents or
other evidence, or failing to disclose information to the tribunal
when required by law to do so. Thus, paragraph (b) requires a
lawyer to take reasonable remedial measures, including
disclosure if necessary, whenever the lawyer knows that a
person, including the lawyer’s client, intends to engage, is
engaging or has engaged in criminal or fraudulent conduct
related to the proceeding.
Duration of Obligation
A practical time limit on the obligation to rectify false
evidence or false statements of law and fact has to be
established. The conclusion of the proceeding is a reasonably
definite point for the termination of the obligation. A
proceeding has concluded within the meaning of this Rule
when a final judgment in the proceeding has been affirmed on
appeal or the time for review has passed.
Ex Parte Proceedings
Ordinarily, an advocate has the limited responsibility of
presenting one side of the matters that a tribunal should
consider in reaching a decision; the conflicting position is
expected to be presented by the opposing party. However, in
any ex parte proceeding, such as an application for a temporary
restraining order, there is no balance of presentation by
opposing advocates. The object of an ex parte proceeding is
nevertheless to yield a substantially just result. The judge has
an affirmative responsibility to accord the absent party just
consideration. The lawyer for the represented party has the
correlative duty to make disclosures of material facts known to
the lawyer and that the lawyer reasonably believes are
necessary to an informed decision, even when those facts do
not favor the lawyer’s client’s position.
Withdrawal
Normally, a lawyer’s compliance with the duty of candor
imposed by this Rule does not require that the lawyer withdraw
from the representation of a client whose interests will be or
have been adversely affected by the lawyer’s disclosure. The
lawyer may, however, be required by Rule 1.16(a) to seek
permission of the tribunal to withdraw if the lawyer’s
compliance with this Rule’s duty of candor results in such an
extreme deterioration of the client-lawyer relationship that the
lawyer can no longer competently represent the client. Also see
Rule 1.16(b) for the circumstances in which a lawyer will be
permitted to seek a tribunal’s permission to withdraw. In
connection with a request for permission to withdraw that is
premised on a client’s misconduct, a lawyer may reveal
confidences and secrets only to the extent reasonably necessary
to comply with this Rule or as otherwise permitted by Rule
1.6.
Rule 3.4. Fairness to Opposing Party and Counsel.
PROFESSIONAL CONDUCT Rule 3.5
43
(a) A lawyer shall not unlawfully obstruct another
party’s access to evidence or unlawfully alter, destroy, or
conceal a document or other material having potential
evidentiary value, nor shall a lawyer counsel or assist another
person to do any of these acts.
(b) A lawyer shall not falsify evidence, counsel or assist
a witness to testify falsely, or offer an inducement to a witness
that is prohibited by law.
(c) A lawyer shall not knowingly violate or disobey an
order of a tribunal or an obligation under the rules of a
tribunal, except for an open refusal based on an assertion that
the order is invalid or that no valid obligation exists.
(d) A lawyer shall not 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) A lawyer shall not in trial allude to any matter that
the lawyer does not reasonably believe is relevant or that will
not be supported by admissible evidence. A lawyer shall not
assert personal knowledge of facts in issue except when
testifying as a witness, nor 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.
(f) A lawyer shall not request that a person other than a
client refrain from voluntarily giving relevant information to
another party unless the person is a relative or an employee or
other agent of a client and the lawyer reasonably believes that
the person’s interests will not be adversely affected by
refraining from giving the information.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
ALASKA COMMENT
The Committee amended paragraph (c) to make clear that
the rule prohibits knowing disobedience of a specific order of a
court as well as the general rules of procedure.
Documents and other items of evidence are often essential
to establish a claim or defense. Subject to evidentiary
privileges, the right of an opposing party, including the
government, to obtain evidence through discovery or subpoena
is an important procedural right. The exercise of that right can
be frustrated if relevant material is altered, concealed, or
destroyed. Applicable law in many jurisdictions makes it an
offense to destroy material for purpose of impairing its
availability in a pending proceeding or one whose commence-
ment can be foreseen. Falsifying evidence is also generally a
criminal offense. Paragraph (a) applies to evidentiary material
generally, including computerized information. Applicable law
may permit a lawyer to take temporary possession of physical
evidence relevant to criminal charges that have been brought
or may be brought against the lawyer’s client, so that the
lawyer can conduct a limited examination that will not alter or
destroy material characteristics of the evidence. In such a case,
Alaska law requires the defense attorney to turn the physical
evidence over to the authorities. Moreover, if the evidence
was obtained from a third party who was not acting for the
client, the defense attorney can be required to disclose the
manner in which the evidence was obtained. See Morrell v.
State, 575 P.2d 1200, 1206-1212 (Alaska 1978); Gipson v.
State, 609 P.2d 1038, 1043 & n.2 (Alaska 1980); and
McCormick v. Anchorage, 999 P.2d 155, 162-63 (Alaska App.
2000).
COMMENT
The procedure of the adversary system contemplates that
the evidence in a case is to be marshalled competitively by the
contending parties. Fair competition in the adversary system is
secured by prohibitions against destruction or concealment of
evidence, improperly influencing witnesses, obstructive tactics
in discovery procedure, and the like.
With regard to paragraph (b), it is not improper to pay a
witness’s expenses or to compensate an expert witness on
terms permitted by law. The common law rule in most
jurisdictions is that it is improper to pay an occurrence witness
any fee for testifying and that it is improper to pay an expert
witness a contingent fee.
Paragraph (f) permits a lawyer to advise employees of a
client to refrain from giving information to another party, for
the employees may identify their interests with those of the
client. See also Rule 4.2.
Rule 3.5. Impartiality and Decorum of the
Tribunal.
(a) A lawyer shall not seek to influence a judge, juror,
prospective juror, or other official by means prohibited by law.
(b) A lawyer shall not communicate ex parte with a
judge, juror, or prospective juror, or any other official except
as permitted by law, court order, or paragraph (c) of this rule.
(c) After a jury is discharged, a lawyer may
communicate with a juror, or a former, prospective, or
alternate juror unless:
(1) the communication is prohibited by law or court
order;
(2) the juror has notified the lawyer or the lawyer’s agent
that the juror does not desire to communicate;
(3) the communication involves misrepresentation,
coercion, duress, or harassment; or
(4) the communication is calculated to improperly
influence the juror’s action in future jury service.
(d) A lawyer shall not engage in conduct intended to
disrupt a tribunal.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1984 effective October 5, 2022)
COMMENT
Rule 3.6 ALASKA COURT RULES
44
Many forms of improper influence upon a tribunal are
proscribed by criminal law. Others are specified in the ABA
Model Code of Judicial Conduct, with which an advocate
should be familiar. A lawyer is required to avoid contributing
to a violation of such provisions.
During a proceeding a lawyer may not communicate ex
parte with persons serving in an official capacity in the
proceeding, such as judges, masters, or jurors, unless
authorized to do so by law or court order.
A lawyer may on occasion want to communicate with a
juror or prospective juror after the jury has been discharged.
The lawyer may do so unless the communication is prohibited
by law or a court order but must respect the desire of the juror
not to talk with the lawyer. The lawyer may not engage in
improper conduct during the communication.
The advocate’s function is to present evidence and
argument so that the cause may be decided according to law.
Refraining from abusive or obstreperous conduct is a corollary
of the advocate’s right to speak on behalf of litigants. A lawyer
may stand firm against abuse by a judge but should avoid
reciprocation; the judge’s default is no justification for similar
dereliction by an advocate. An advocate can present the cause,
protect the record for subsequent review and preserve
professional integrity by patient firmness no less effectively
than by belligerence or theatrics.
The duty to refrain from disruptive conduct applies to any
proceeding of a tribunal. See Rule 9.1(u).
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).
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
It is difficult to strike a balance between protecting the
right to a fair trial and safeguarding the right of free
expression. Preserving the right to a fair trial necessarily
entails some curtailment of the information that may be
disseminated about a party prior to trial, particularly where
trial by jury is involved. If there were no such limits, the result
would be the practical nullification of the protective effect of
the rules of forensic decorum and the exclusionary rules of
evidence. On the other hand, there are vital social interests
served by the free dissemination of information about events
having legal consequences and about legal proceedings
themselves. The public has a right to know about threats to its
safety and measures aimed at assuring its security. It also has a
legitimate interest in the conduct of judicial proceedings,
particularly in matters of general public concern. Furthermore,
the subject matter of legal proceedings is often of direct
significance in debate and deliberation over questions of public
policy.
Special rules of confidentiality may validly govern
proceedings in juvenile, domestic relations, and mental
disability proceedings, and perhaps other types of litigation.
Rule 3.4(c) requires compliance with such rules.
The Rule sets forth a basic general prohibition against a
lawyer’s making statements that the lawyer knows or should
know will have a substantial likelihood of materially
prejudicing an adjudicative proceeding. Recognizing that the
public value of informed commentary is great and the
likelihood of prejudice to a proceeding by the commentary of a
lawyer who is not involved in the proceeding is small, the rule
applies only to lawyers who are, or who have been involved in
the investigation or litigation of a case, and their associates.
Paragraph (b) identifies specific matters about which a
PROFESSIONAL CONDUCT Rule 3.7
45
lawyer’s statements would not ordinarily be considered to
present a substantial likelihood of material prejudice, and
should not in any event be considered prohibited by the general
prohibition of paragraph (a). Paragraph (b) is not intended to
be an exhaustive listing of the subjects upon which a lawyer
may make a statement, but statements on other matters may be
subject to paragraph (a).
There are, on the other hand, certain subjects that are more
likely than not to have a material prejudicial effect on a
proceeding, particularly when they refer to a civil matter
triable to a jury, a criminal matter, or any other proceeding that
could result in incarceration. These subjects relate to:
(1) the character, credibility, reputation, or criminal
record of a party, suspect in a criminal investigation or witness,
or the identity of a witness, or the expected testimony of a
party or witness;
(2) in a criminal case or proceeding that could result in
incarceration, the possibility of a plea of guilty to the offense
or the existence or contents of any confession, admission, or
statement given by a defendant or suspect or that person’s
refusal or failure to make a statement;
(3) the performance or results of any examination or test
or the refusal or failure of a person to submit to an examination
or test, or the identity or nature of physical evidence expected
to be presented;
(4) any opinion as to the guilt or innocence of a
defendant or suspect in a criminal case or proceeding that
could result in incarceration;
(5) information that the lawyer knows or reasonably
should know is likely to be inadmissible as evidence in a trial
and that would, if disclosed, create a substantial risk of
prejudicing an impartial trial; or
(6) the fact that a defendant has been charged with a
crime, unless there is included therein a statement explaining
that the charge is merely an accusation and that the defendant
is presumed innocent until and unless proven guilty.
Another relevant factor in determining prejudice is the
nature of the proceeding involved. Criminal jury trials will be
most sensitive to extrajudicial speech. Civil trials may be less
sensitive. Non-jury hearings and arbitration proceedings may
be even less affected. The Rule will still place limitations on
prejudicial comments in these cases, but the likelihood of
prejudice may be different depending on the type of
proceeding.
Finally, extrajudicial statements that might otherwise raise
a question under this Rule may be permissible when they are
made in response to statements made publicly by another
party, another party’s lawyer, or third persons, where a
reasonable lawyer would believe a public response is required
in order to avoid prejudice to the lawyer’s client. When
prejudicial statements have been publicly made by others,
responsive statements may have the salutary effect of lessening
any resulting adverse impact on the adjudicative proceeding.
Such responsive statements should be limited to contain only
such information as is necessary to mitigate undue prejudice
created by the statements made by others.
See Rule 3.8(f) for additional duties of prosecutors in
connection with extrajudicial statements about criminal
proceedings.
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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
Combining the roles of advocate and witness can
prejudice the tribunal and the opposing party and can also
involve a conflict of interest between the lawyer and client.
Advocate-Witness Rule
The tribunal has proper objection when the trier of fact
may be confused or misled by a lawyer serving as both
advocate and witness. The opposing party has proper objection
where the combination of roles may prejudice that party’s
rights in the litigation. A witness is required to testify on the
basis of personal knowledge, while an advocate is expected to
explain and comment on evidence given by others. It may not
be clear whether a statement by an advocate-witness should be
taken as proof or as an analysis of the proof.
To protect the tribunal, paragraph (a) prohibits a lawyer
from simultaneously serving as advocate and necessary
witness except in those circumstances specified in paragraphs
(a)(1) through (a)(3). Paragraph (a)(1) recognizes that if the
testimony will be uncontested, the ambiguities in the dual role
are purely theoretical. Paragraph (a)(2) recognizes that where
the testimony concerns the extent and value of legal services
rendered in the action in which the testimony is offered,
permitting the lawyers to testify avoids the need for a second
trial with new counsel to resolve that issue. Moreover, in such
a situation the judge has firsthand knowledge of the matter in
issue; hence, there is less dependence on the adversary process
to test the credibility of the testimony.
Paragraph (a)(3) requires a balancing between the
interests of the client and those of the tribunal and the
opposing party. Whether the tribunal is likely to be misled or
Rule 3.8 ALASKA COURT RULES
46
the opposing party is likely to suffer prejudice depends on the
nature of the case, the importance and probable tenor of the
lawyer’s testimony, and the probability that the lawyer’s
testimony will conflict with that of other witnesses. Even if
there is risk of such prejudice, in determining whether the
lawyer should be disqualified, due regard must be given to the
effect of disqualification on the lawyer’s client. It is relevant
that one or both parties could reasonably foresee that the
lawyer would probably be a witness. The conflict of interest
principles stated in Rules 1.7, 1.9, and 1.10 have no application
to this aspect of the problem.
Because the tribunal is not likely to be misled when a
lawyer acts as advocate in a trial in which another lawyer in
the lawyer’s firm will testify as a necessary witness, paragraph
(b) permits the lawyer to do so except in situations involving a
conflict of interest.
Conflict of Interest
In determining if it is permissible to act as advocate in a
trial in which the lawyer will be a necessary witness, the
lawyer must also consider that the dual role may give rise to a
conflict of interest that will require compliance with Rules 1.7
or 1.9. For example, if there is likely to be substantial conflict
between the testimony of the client and that of the lawyer the
representation involves a conflict of interest that requires
compliance with Rule 1.7. This would be true even though the
lawyer might not be prohibited by paragraph (a) from
simultaneously serving as advocate and witness because the
lawyer’s disqualification would work a substantial hardship on
the client. Similarly, a lawyer who might be permitted to
simultaneously serve as an advocate and a witness by
paragraph (a)(3) might be precluded from doing so by Rule
1.9. The problem can arise whether the lawyer is called as a
witness on behalf of the client or is called by the opposing
party. Determining whether or not such a conflict exists is
primarily the responsibility of the lawyer involved. If there is a
conflict of interest, the lawyer must secure the client’s
informed consent, confirmed in writing. In some cases, the
lawyer will be precluded from seeking the client’s consent. See
Rule 1.7. See Rule 9.1(c) for the definition of “confirmed in
writing” and Rule 9.1(g) for the definition of “informed
consent.”
Paragraph (b) provides that a lawyer is not disqualified
from serving as an advocate because a lawyer with whom the
lawyer is associated in a firm is precluded from doing so by
paragraph (a). If, however, the testifying lawyer would also be
disqualified by Rule 1.7 or Rule 1.9 from representing the
client in the matter, other lawyers in the firm will be precluded
from representing the client by Rule 1.10 unless the client
gives informed consent under the conditions stated in Rule 1.7.
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) [Deleted]
(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; and
(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 likeli-
hood of heightening public condemnation of the accused and
exercise reasonable care to prevent investigators, law enforce-
ment 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.
(g) When a prosecutor knows of new and credible
evidence creating a reasonable likelihood that a defendant did
not commit an offense of which the defendant was convicted,
the prosecutor shall promptly disclose that evidence to the
appropriate court, the defendant’s lawyer, if known, and the
defendant, unless a court authorizes delay or unless the
prosecutor reasonably believes that the evidence has been or
will otherwise be promptly communicated to the court and
served on the defendant’s lawyer and the defendant. For pur-
poses of this rule: (1) the term “new” means unknown to a
trial prosecutor at the time the conviction was entered or, if
known to a trial prosecutor, not disclosed to the defense, either
deliberately or inadvertently; (2) the term “credible” means
evidence a reasonable person would find believable; (3) the
phrase “appropriate court” means the court which entered the
conviction against the defendant and, in addition, if appellate
proceedings related to the defendant’s conviction are pending,
the appellate court which is conducting those proceedings; and
(4) the phrase “defendant’s lawyer” means the lawyer, law
firm, agency, or organization that represented the defendant in
the matter which resulted in the conviction.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1812 effective April 15, 2014)
PROFESSIONAL CONDUCT Rule 3.9
47
ALASKA COMMENT
Alaska Rule 3.8 does not include paragraph (c) of the
model rule. This paragraph would prevent a prosecutor from
taking part in a legitimate interrogation of an arrested suspect.
It would also prohibit a prosecutor from offering constructive
pretrial resolutions of a criminal case, such as pretrial diversion
or becoming a government witness. If a court determines that
a prosecutor has taken unfair advantage of an unrepresented
suspect or defendant legal remedies are already available.
COMMENT
A prosecutor has the responsibility of a minister of justice
and not simply that of an advocate. This responsibility carries
with it specific obligations to see that the defendant is accorded
procedural justice, that guilt is decided upon the basis of
sufficient evidence, and that special precautions are taken to
prevent and to rectify the conviction of innocent persons. The
extent of mandated remedial action is a matter of debate and
varies in different jurisdictions. Applicable law may require
other measures by the prosecutor and knowing disregard of
those obligations or a systematic abuse of prosecutorial
discretion could constitute a violation of Rule 8.4.
The exceptions in paragraphs (d) and (g) recognize that a
prosecutor may seek an appropriate protective order from the
tribunal if disclosure of information to the defense could result
in substantial harm to an individual or to the public interest.
Paragraph (e) is intended to limit the issuance of lawyer
subpoenas in grand jury and other criminal proceedings to
those situations in which there is a genuine need to intrude into
the client-lawyer relationship.
Paragraph (f) supplements Rule 3.6, which prohibits
extrajudicial statements that have a substantial likelihood of
prejudicing an adjudicatory proceeding. In the context of a
criminal prosecution, a prosecutor’s extrajudicial statement can
create the additional problem of increasing public condemna-
tion of the accused. Although the announcement of an
indictment, for example, will necessarily have severe conse-
quences for the accused, a prosecutor can, and should, avoid
comments which have no legitimate law enforcement purpose
and have a substantial likelihood of increasing public oppro-
brium of the accused. Nothing in this COMMENT is intended
to restrict the statement which a prosecutor may make which
comply with Rule 3.6(b) or 3.6(c).
Like other lawyers, prosecutors are subject to Rules 5.1
and 5.3, which relate to responsibilities regarding lawyers and
nonlawyers who work for or are associated with the lawyer’s
office. Paragraph (f) reminds the prosecutor of the importance
of these obligations in connection with the unique dangers of
improper extrajudicial statements in a criminal case. In
addition, paragraph (f) requires a prosecutor to exercise
reasonable care to prevent persons assisting or associated with
the prosecutor from making improper extrajudicial statements,
even when such persons are not under the direct supervision of
the prosecutor. Ordinarily, the reasonable care standard will be
satisfied if the prosecutor issues the appropriate cautions to
law-enforcement personnel and other relevant individuals.
Under paragraph (g), the reasons for the evidence being
unknown (and therefore “new”) are varied. It may be “new”
because: the information was not available to a trial prosecutor
or the prosecution team at the time of trial; the police
department investigating the case or other agency involved in
the prosecution did not provide the evidence to a trial
prosecutor; or recent testing was performed which was not
available at the time of trial. There may be other circumstances
when information would be deemed “new” evidence.
A prosecutor does not violate paragraph (g) of this rule if
the prosecutor makes a good faith judgment that the new
evidence is not of such a nature as to trigger the obligations of
paragraph (g), even though the prosecutor’s judgment is later
determined to have been erroneous.
LAW REVIEW COMMENTARIES
“Guilty But Mentally Ill: The Ethical Dilemma of Mental Illness as a Tool
of the Prosecution,” 32 Alaska L. Rev. 1 (2015).
Rule 3.9. Advocate in Nonadjudicative
Proceedings.
A lawyer representing a client before a legislative body or
committee 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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
In representation before bodies such as legislatures,
municipal councils, and executive and administrative agencies
acting in a rule-making or policy-making capacity, lawyers
present facts, formulate issues and advance argument in the
matters under consideration. The decision-making body, like a
court, should be able to rely on the integrity of the submissions
made to it. A lawyer appearing before such a body must deal
with it honestly and in conformity with applicable rules of
procedure. See Rules 3.3(a) through (c), 3.4(a) through (c) and
3.5.
Lawyers have no exclusive right to appear before
nonadjudicative bodies, as they do before a court. The
requirements of this Rule therefore may subject lawyers to
regulations inapplicable to advocates who are not lawyers.
However, legislatures and administrative agencies have a right
to expect lawyers to deal with them as they deal with courts.
This Rule only applies when a lawyer represents a client
in connection with an official hearing or meeting of a
governmental agency or a legislative body to which the lawyer
or the lawyer’s client is presenting evidence or argument. It
does not apply to representation of a client in a negotiation or
other bilateral transaction with a governmental agency. Nor
does it apply to the representation of a client in connection
with an investigation or examination of the client’s affairs
conducted by government investigators or examiners.
Representation in such matters is governed by Rules 4.1
through 4.4.
Rule 4.1 ALASKA COURT RULES
48
TRANSACTIONS WITH PERSONS
OTHER THAN CLIENTS
Rule 4.1. Truthfulness in Statements 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 when disclosure is
necessary to avoid assisting a criminal or fraudulent act by a
client, unless disclosure is prohibited by Rule 1.6.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
Misrepresentation
A lawyer is required to be truthful when dealing with
others on a client’s behalf, but generally has no affirmative
duty to inform an opposing party of relevant facts. A
misrepresentation can occur if the lawyer incorporates or
affirms a statement of another person that the lawyer knows is
false. Misrepresentations can also occur by partially true but
misleading statements or omissions that are the equivalent of
affirmative false statements. For dishonest conduct that does
not amount to a false statement or for misrepresentations by a
lawyer other than in the course of representing a client, see
Rule 8.4.
Statements of Fact Versus Statements of Opinion
This Rule refers to statements of fact. Whether a particular
statement should be regarded as one of fact can depend on the
circumstances. Under generally accepted conventions in
negotiation, certain types of statements ordinarily are not taken
as statements of material fact. Estimates of price or value
placed on the subject of a transaction and a party’s intentions
as to an acceptable settlement of a claim are ordinarily in this
category, and so is the existence of an undisclosed principal
except where nondisclosure of the principal would constitute
fraud. Lawyers should be mindful of their obligations under
applicable law to avoid criminal and tortious misrepresenta-
tion.
Crime or Fraud by Client
Under Rule 1.2(d), a lawyer is prohibited from counseling
or assisting a client in conduct that the lawyer knows is
criminal or fraudulent. Paragraph (b) states a specific
application of the principle set forth in Rule 1.2(d) and
addresses the situation where a client’s crime or fraud takes the
form of a lie or misrepresentation. Ordinarily, a lawyer can
avoid assisting a client’s crime or fraud by withdrawing from
the representation. Sometimes it may be necessary for the
lawyer to give notice of the fact of withdrawal and to disaffirm
an opinion, document, affirmation, or the like. In extreme
cases, substantive law may require a lawyer to disclose
confidences and secrets to avoid being deemed to have assisted
the client’s crime or fraud. If the lawyer can avoid assisting a
client’s crime or fraud only by disclosing this information, then
under paragraph (b) the lawyer is required to do so, unless the
disclosure is prohibited by Rule 1.6.
Rule 4.2. Communication with Person Represented
by Counsel.
In representing a client, a lawyer shall not communicate
about the subject of the representation with a party or 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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
ALASKA COMMENT
See Rule 1.2(c) regarding communications when limited
representation is provided.
COMMENT
This Rule contributes to the proper functioning of the
legal system by protecting a person who has chosen to be
represented by a lawyer in a matter against possible
overreaching by other lawyers who are participating in the
matter, interference by those lawyers with the client-lawyer
relationship, and the uncounselled disclosure of the person’s
confidences and secrets.
This Rule applies to communications with any person
who is represented by counsel concerning the matter to which
the communication relates.
The Rule applies even though the represented person
initiates or consents to the communication. A lawyer must
immediately terminate communication with a person if, after
commencing communication, the lawyer learns that the person
is one with whom communication is not permitted by this
Rule.
This Rule does not prohibit communication with a
represented person, or an employee or agent of such a person,
concerning matters outside the representation. For example,
the existence of a controversy between a government agency
and a private party, or between two organizations, does not
prohibit a lawyer for either from communicating with
nonlawyer representatives of the other regarding a separate
matter. Nor does this Rule preclude communication with a
represented person who is seeking advice from a lawyer who is
not otherwise representing a client in the matter. A lawyer may
not make a communication prohibited by this Rule through the
acts of another. See Rule 8.4(a). Parties to a matter may
communicate directly with each other, and a lawyer is not
prohibited from advising a client concerning a communication
that the client is legally entitled to make. Also, a lawyer having
independent justification or legal authorization for
communicating with a represented person is permitted to do so.
Communications authorized by law may include
communications by a lawyer on behalf of a client who is
PROFESSIONAL CONDUCT Rule 4.4.
49
exercising a constitutional or other legal right to communicate
with the government. Communications authorized by law may
also include investigative activities of lawyers representing
governmental entities, directly or through investigative agents,
prior to the commencement of criminal or civil enforcement
proceedings.
In the case of a represented organization, this Rule
prohibits communications by a lawyer concerning the matter
with persons having managerial responsibility on behalf of an
organization. Consent of the organization’s lawyer is not
required for communication with a former constituent. See
Rule 1.13(f) for the definition of “constituent.” If a constituent
of the organization is represented in the matter by his or her
own counsel, the consent by that counsel to a communication
will be sufficient for purposes of this Rule. Compare Rule
3.4(f). In communicating with a current or former constituent
of an organization, a lawyer must not use methods of obtaining
evidence that violate the legal rights of the organization. See
Rule 4.4.
The prohibition on communications with a represented
person only applies in circumstances where the lawyer knows
that the person is in fact represented in the matter to be
discussed. This means that the lawyer has actual knowledge of
the fact of the representation; but such actual knowledge may
be inferred from the circumstances. See Rule 9.1(h).
In the event the person with whom the lawyer
communicates is not known to be represented by counsel in the
matter, the lawyer’s communications are subject to Rule 4.3.
Rule 4.3. Dealing with Unrepresented Person.
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 that person are or
have a reasonable possibility of being in conflict with the
interests of the client.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
ALASKA COMMENT
See Rule 1.2(c) regarding communications when limited
representation is provided.
COMMENT
An unrepresented person, particularly one not experienced
in dealing with legal matters, might assume that a lawyer is
disinterested in loyalties or is a disinterested authority on the
law even when the lawyer represents a client. In order to avoid
a misunderstanding, a lawyer will typically need to identify the
lawyer’s client and, where necessary, explain that the client
has interests opposed or potentially opposed to those of the
unrepresented person. For misunderstandings that sometimes
arise when a lawyer for an organization deals with an
unrepresented constituent, see Rule 1.13(d) and Rule 1.13(f)
(the definition of “constituent”).
The Rule distinguishes between situations involving
unrepresented persons whose interests may be adverse to those
of the lawyer’s client and those in which the person’s interests
are not in conflict with the client’s. In the former situation, the
possibility that the lawyer will compromise the unrepresented
person’s interests is so great that the Rule prohibits the giving
of any advice, apart from the advice to obtain counsel.
Whether a lawyer is giving impermissible advice may depend
on the experience and sophistication of the unrepresented
person, as well as the setting in which the behavior and
comments occur. This Rule does not prohibit a lawyer from
negotiating the terms of a transaction or settling a dispute with
an unrepresented person. So long as the lawyer has explained
that the lawyer represents an adverse party and is not
representing the person, the lawyer may inform the person of
the terms on which the lawyer’s client will enter into an
agreement or settle a matter, prepare documents that require
the person’s signature and explain the lawyer’s own view of
the meaning of the document or the lawyer’s view of the
underlying legal obligations.
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 writing or electronically
stored information relating to the representation of the lawyer’s
client and knows or reasonably should know that the writing or
electronically stored information was inadvertently sent shall
promptly notify the sender.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1905 effective October 15, 2017; and by
SCO 1984 effective October 5, 2022)
COMMENT
Responsibility to a client requires a lawyer to subordinate
the interests of others to those of the client, but that
responsibility does not imply that a lawyer may disregard the
rights of third persons. It is impractical to catalogue all such
rights, but they include legal restrictions on methods of
obtaining evidence from third persons and unwarranted
intrusions into privileged relationships, such as the client-
lawyer relationship.
Paragraph (b) recognizes that lawyers sometimes receive a
writing or electronically stored information that was
mistakenly sent or produced by opposing parties or their
lawyers. A writing or electronically stored information is
inadvertently sent when it is accidentally transmitted, such as
when an email or letter is misaddressed or a document or
Rule 5.1 ALASKA COURT RULES
50
electronically stored information is accidentally included with
information that was intentionally transmitted. If a lawyer
knows or reasonably should know that such a writing or
electronically stored information was sent inadvertently, then
this Rule requires the lawyer to promptly notify the sender in
order to permit that person to take protective measures.
Whether the lawyer is required to take additional steps, such as
returning the writing or electronically stored information, is a
matter of law beyond the scope of these Rules, as is the
question of whether the privileged status of a writing or
electronically stored information has been waived. Similarly,
this Rule does not address the legal duties of a lawyer who
receives a writing or electronically stored information that the
lawyer knows or reasonably should know may have been
inappropriately obtained by the sending person. For purposes
of this Rule, “writing or electronically stored information”
includes, in addition to paper documents, email and other
forms of electronically stored information, including
embedded data (commonly referred to as “metadata”), that is
subject to being read or put into readable form. See Rule
9.1(v). Metadata in electronic documents creates an obligation
under this Rule only if the receiving lawyer knows or
reasonably should know that the metadata was inadvertently
sent to the receiving lawyer.
Some lawyers may choose to return a writing or delete
electronically stored information unread, for example, when
the lawyer learns before receiving it that it was inadvertently
sent. Where a lawyer is not required by applicable law to do
so, the decision to voluntarily return such a writing or delete
electronically stored information is a matter of professional
judgment ordinarily reserved to the lawyer. See Rules 1.2 and
1.4.
LAW FIRMS AND ASSOCIATIONS
Rule 5.1. Responsibilities of Partners, Mana-
gers, and Supervisory Lawyers.
(a) A partner in a law firm, and a lawyer who
individually or together with other lawyers has 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 shall be responsible for another lawyer’s
violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific
conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or the lawyer individually or
together with other lawyers 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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
Paragraph (a) applies to lawyers who have managerial
authority over the professional work of a firm. See Rule 9.1(e).
This includes members of a partnership, the shareholders in a
law firm organized as a professional corporation, and members
of other associations authorized to practice law; lawyers
having comparable managerial authority in a legal services
organization or a law department of an enterprise or
government agency; and lawyers who have intermediate
managerial responsibilities in a firm. Paragraph (b) applies to
lawyers who have supervisory authority over the work of other
lawyers in a firm.
Paragraph (a) requires lawyers with managerial authority
within a firm to make reasonable efforts to establish internal
policies and procedures designed to provide reasonable
assurance that all lawyers in the firm will conform to the Rules
of Professional Conduct. These policies and procedures
include those designed to detect and resolve conflicts of
interest, identify dates by which actions must be taken in
pending matters, account for client funds and property and
ensure that inexperienced lawyers are properly supervised.
Other measures that may be required to fulfill the
responsibility prescribed in paragraph (a) can depend on the
firm’s structure and the nature of its practice. In a small firm of
experienced lawyers, informal supervision and periodic review
of compliance with the required systems ordinarily will
suffice. In a large firm, or in practice situations in which
difficult ethical problems frequently arise, more elaborate
measures may be necessary. Some firms, for example, have a
procedure whereby junior lawyers can make confidential
referral of ethical problems directly to a designated senior
partner or special committee. See Rule 5.2. Firms, whether
large or small, may also rely on continuing legal education in
professional ethics. In any event, the ethical atmosphere of a
firm can influence the conduct of all its members and the
partners may not assume that all lawyers associated with the
firm will inevitably conform to the Rules.
Paragraph (c) expresses a general principle of personal
responsibility for acts of another. See also Rule 8.4(a).
Paragraph (c)(2) defines the duty of a partner or other
lawyer having comparable managerial authority in a law firm,
as well as a lawyer who has direct supervisory authority over
performance of specific legal work by another lawyer.
Whether a lawyer has supervisory authority in particular
circumstances is a question of fact. Partners and lawyers with
comparable authority have at least indirect responsibility for all
work being done by the firm, while a partner or manager in
charge of a particular matter ordinarily also has supervisory
responsibility for the work of other firm lawyers engaged in
the matter. Appropriate remedial action by a partner or
managing lawyer would depend on the immediacy of that
lawyer’s involvement and the seriousness of the misconduct. A
PROFESSIONAL CONDUCT Rule 5.3
51
supervisor is required to intervene to prevent avoidable
consequences of misconduct if the supervisor knows that the
misconduct occurred. Thus, if a supervising lawyer knows that
a subordinate misrepresented a matter to an opposing party in
negotiation, the supervisor as well as the subordinate has a
duty to correct the resulting misapprehension.
Professional misconduct by a lawyer under supervision
could reveal a violation of paragraph (b) on the part of the
supervisory lawyer even though it does not entail a violation of
paragraph (c) because there was no direction, ratification or
knowledge of the violation.
Apart from this Rule and Rule 8.4(a), a lawyer does not
have disciplinary liability for the conduct of a partner,
associate or subordinate. Whether a lawyer may be liable
civilly or criminally for another lawyer’s conduct is a question
of law beyond the scope of these Rules.
The duties imposed by this Rule on managing and
supervising lawyers do not alter the personal duty of each
lawyer in a firm to abide by the Rules of Professional Conduct.
See Rule 5.2(a).
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 that lawyer acts in accordance with a
supervisory lawyer’s reasonable resolution of an arguable
question of professional duty.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
Although a lawyer is not relieved of responsibility for a
violation by the fact that the lawyer acted at the direction of a
supervisor, that fact may be relevant in determining whether a
lawyer had the knowledge required to render conduct a
violation of the Rules. For example, if a subordinate filed a
frivolous pleading at the direction of a supervisor, the
subordinate would not be guilty of a professional violation
unless the subordinate knew of the document’s frivolous
character.
When lawyers in a supervisor-subordinate relationship
encounter a matter involving professional judgment as to
ethical duty, the supervisor may assume responsibility for
making the judgment. Otherwise a consistent course of action
or position could not be taken. If the question can reasonably
be answered only one way, the duty of both lawyers is clear
and they are equally responsible for fulfilling it. However, if
the question is reasonably arguable, someone has to decide
upon the course of action. That authority ordinarily reposes in
the supervisor, and a subordinate may be guided accordingly.
For example, if a question arises whether the interests of two
clients conflict under Rule 1.7, the supervisor’s reasonable
resolution of the question should protect the subordinate
professionally if the resolution is subsequently challenged.
Rule 5.3. Responsibilities Regarding Non-
lawyer Assistance.
(a) With respect to a nonlawyer employed or retained by
or associated with a lawyer:
(1) a partner in a law firm, and a lawyer who individually
or together with other lawyers has 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;
(2) 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
(3) 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:
(A) the lawyer orders or, with the knowledge of the
specific conduct, ratifies the conduct involved; or
(B) the lawyer is a partner or the lawyer individually or
together with other lawyers 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.
(b) A lawyer shall advise a nonlawyer who ends an
association with the lawyer not to disclose confidences and
secrets protected by Rule 1.6 that were learned by the
nonlawyer during the association.
(c) A lawyer who employs, retains, or forms an
association with a nonlawyer shall advise the nonlawyer not to
disclose confidences and secrets protected by Rule 1.6 learned
by the nonlawyer during an association with another lawyer. If
the nonlawyer participated in a matter that would create a
conflict of interest for a lawyer under Rule 1.7 or Rule 1.9, the
nonlawyer shall be screened from any participation in the
matter.
(d) A lawyer who learns that any person employed by the
lawyer has revealed a confidence or secret protected by these
rules shall notify the person whose confidence or secret was
revealed.
(SCO 1123 effective July 15, 1993; amended by SCO 1332
effective January 15, 1999; rescinded and repromulgated by
SCO 1680 effective April 15, 2009; amended by SCO 1905
effective October 15, 2017)
COMMENT
Paragraph (a) requires lawyers with managerial authority
within a law firm to make reasonable efforts to ensure that the
Rule 5.4 ALASKA COURT RULES
52
firm has in effect measures giving reasonable assurance that
nonlawyers in the firm and nonlawyers outside the firm who
work on firm matters act in a way compatible with the
professional obligations of the lawyer. See Comment to Rule
1.1 (retaining lawyers outside the firm) and Comment to Rule
5.1 (responsibilities with respect to lawyers within a firm).
Paragraph (b) applies to lawyers who have supervisory
authority over such nonlawyers within or outside the firm.
Paragraph (c) specifies the circumstances in which a lawyer is
responsible for the conduct of such nonlawyers within or
outside the firm that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer.
Lawyers generally employ assistants in their practice,
including secretaries, investigators, law student interns, and
paralegals. Such assistants, whether employees or independent
contractors, act for the lawyer in rendition of the lawyer’s
professional services. A lawyer must give such assistants
appropriate instruction and supervision concerning the ethical
aspects of their employment, particularly regarding the obliga-
tion not to disclose confidences and secrets of the client, and
should be responsible for their work product. The measures
employed in supervising nonlawyers should take account of
the fact that they do not have legal training and are not subject
to professional discipline.
A lawyer may use nonlawyers outside the firm to assist
the lawyer in rendering legal services to the client. Examples
include the retention of an investigative or paraprofessional
service, hiring a document management company to create and
maintain a database for complex litigation, sending client
documents to a third party for printing or scanning, and using
an Internet-based service to store client information. When
using such services outside the firm, a lawyer must make
reasonable efforts to ensure that the services are provided in a
manner that is compatible with the lawyer’s professional
obligations. The extent of this obligation will depend upon the
circumstances, including the education, experience and
reputation of the nonlawyer; the nature of the services
involved; the terms of any arrangements concerning the
protection of client information; and the legal and ethical
environments of the jurisdictions in which the services will be
performed, particularly with regard to confidentiality. See
Rules 1.1 (competence), 1.2 (allocation of authority), 1.4
(communication with client), 1.6 (confidentiality), 5.4(a)
(professional independence of the lawyer), and 5.5(a)
(unauthorized practice of law). When retaining or directing a
nonlawyer outside the firm, a lawyer should communicate
directions appropriate under the circumstances to give
reasonable assurance that the nonlawyer’s conduct is
compatible with the professional obligations of the lawyer.
Where the client directs the selection of a particular
nonlawyer service provider outside the firm, the lawyer
ordinarily should agree with the client concerning the
allocation of responsibility for monitoring as between the
client and the lawyer. See Rule 1.2. When making such an
allocation in a matter pending before a tribunal, lawyers and
parties may have additional obligations that are a matter of law
beyond the scope of these Rules.
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 lawyer who
is deceased, disabled, or whose whereabouts are unknown
may, pursuant to the provisions of Rule 1.17, 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 recommend-
ed 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 other 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 director or officer of the corporation
or occupies a 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.
(SCO 1123 effective July 15, 1993; amended by SCO 1371
effective April 15, 2000; rescinded and repromulgated by SCO
1680 effective April 15, 2009)
COMMENT
The provisions of this Rule express traditional limitations
on sharing fees. These limitations are to protect the lawyer’s
professional independence of judgment. Where someone other
than the client pays the lawyer’s fee or salary, or recommends
employment of the lawyer, that arrangement does not modify
the lawyer’s obligation to the client. As stated in paragraph (c),
such arrangements should not interfere with the lawyer’s
PROFESSIONAL CONDUCT Rule 5.5
53
professional judgment.
This Rule also imposes traditional limitations on
permitting a third party to direct or regulate the lawyer’s
professional judgment in rendering legal services to another.
See also Rule 1.8(f) (lawyer may accept compensation from a
third party as long as there is no interference with the lawyer’s
independent professional judgment and the client gives
informed consent).
Rule 5.5. Unauthorized Practice of Law;
Multijurisdictional Practice of Law.
(a) A lawyer shall not practice law in any jurisdiction
unless authorized to do so by the laws of that jurisdiction.
(b) A lawyer who is not admitted to practice in this
jurisdiction shall not:
(1) except as authorized by these Rules or other law,
establish an office or other systematic and continuous presence
in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the
lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States
jurisdiction, and not disbarred or suspended from practice in
any jurisdiction, may provide legal services on a temporary
basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is
admitted to practice in this jurisdiction and who actively
participates in the matter;
(2) are in or reasonably related to a pending or potential
proceeding before a tribunal in this or another jurisdiction, if
the lawyer, or a person the lawyer is assisting, is authorized by
law or order to appear in that proceeding or reasonably expects
to be so authorized;
(3) are in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute resolution
proceeding in this or another jurisdiction, if the services arise
out of or are reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted to practice and are
not services for which the forum requires pro hac vice
admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise
out of or are reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted in another United States
jurisdiction or in a foreign jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal
services in this jurisdiction that:
(1) are provided to the lawyer’s employer or its
organizational affiliates; are not services for which the forum
requires pro hac vice admission; and, when performed by a
foreign lawyer and require advice on the law of this or another
U.S. jurisdiction or of the United States, are based on the
advice of a lawyer who is duly licensed and authorized by the
jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized to provide
by federal law or other law of this jurisdiction.
(e) For purposes of paragraph (d), 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 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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1905 effective October 15, 2017)
COMMENT
A lawyer may practice law only in a jurisdiction in which
the lawyer is authorized to practice. A lawyer may be admitted
to practice law in a jurisdiction on a regular basis or may be
authorized by court rule or order or by law to practice for a
limited purpose or on a restricted basis. Paragraph (a) applies
to unauthorized practice of law by a lawyer, whether through
the lawyer’s direct action or by the lawyer assisting another
person. See Rule 8.4(a).
The definition of the practice of law is established by law
and varies from one jurisdiction to another. Whatever the
definition, limiting the practice of law to members of the bar
protects the public against rendition of legal services by
unqualified persons. This Rule does not prohibit a lawyer from
employing the services of paralegals and delegating functions
to them, so long as the lawyer supervises the delegated work
and retains responsibility for their work. See Rule 5.3.
A lawyer may provide professional advice and instruction
to nonlawyers whose employment requires knowledge of the
law; for example, claims adjusters, employees of financial or
commercial institutions, social workers, accountants and
persons employed in government agencies. Lawyers also may
assist independent nonlawyers, such as paralegals, who are
authorized by the law of a jurisdiction to provide particular
law-related services. In addition, a lawyer may counsel
nonlawyers who wish to proceed pro se.
Other than as authorized by law or this Rule, a lawyer
who is not admitted to practice generally in this jurisdiction
violates paragraph (b) if the lawyer establishes an office or
other systematic and continuous presence in this jurisdiction
for the practice of law. Presence may be systematic and
continuous even if the lawyer is not physically present here.
Such a lawyer must not hold out to the public or otherwise
represent that the lawyer is admitted to practice law in this
jurisdiction. See also Rules 7.1(a) and 7.5(b).
There are occasions when lawyers admitted to practice in
another United States jurisdiction, and not disbarred or
suspended from practice in any jurisdiction, may provide legal
services on a temporary basis in this jurisdiction under
circumstances that do not create an unreasonable risk to the
Rule 5.5 ALASKA COURT RULES
54
interests of their clients, the public or the courts. Paragraph (c)
identifies four such circumstances. The fact that conduct is not
so identified does not imply that the conduct is or is not
authorized. With the exception of paragraphs (d)(1) and (d)(2),
this Rule does not authorize a U.S. or foreign lawyer to
establish an office or other systematic and continuous presence
in this jurisdiction without being admitted to practice generally
here.
There is no single test to determine whether a lawyer’s
services are provided on a “temporary basis” in this
jurisdiction, and may therefore be permissible under paragraph
(c). Services may be “temporary” even though the lawyer
provides services in this jurisdiction on a recurring basis, or for
an extended period of time, as when the lawyer is representing
a client in a single lengthy negotiation or litigation.
Paragraphs (c) and (d) apply to lawyers who are admitted
to practice law in any United States jurisdiction, which
includes the District of Columbia and any state, territory or
commonwealth of the United States. Paragraph (d) also applies
to lawyers admitted in a foreign jurisdiction. The word
“admitted” in paragraphs (c), (d), and (e) contemplates that the
lawyer is authorized to practice in the jurisdiction in which the
lawyer is admitted and excludes a lawyer who while
technically admitted is not authorized to practice, because, for
example, the lawyer is on inactive status.
Paragraph (c)(1) recognizes that the interests of clients
and the public are protected if a lawyer admitted only in
another jurisdiction associates with a lawyer licensed to
practice in this jurisdiction. For this paragraph to apply,
however, the lawyer admitted to practice in this jurisdiction
must actively participate in and share responsibility for the
representation of the client.
Lawyers not admitted to practice generally in a
jurisdiction may be authorized by law or order of a tribunal or
an administrative agency to appear before the tribunal or
agency. This authority may be granted pursuant to formal rules
governing admission pro hac vice or pursuant to informal
practice of the tribunal or agency. Under paragraph (c)(2), a
lawyer does not violate this Rule when the lawyer appears
before a tribunal or agency pursuant to such authority. To the
extent that a court rule or other law of this jurisdiction requires
a lawyer who is not admitted to practice in this jurisdiction to
obtain admission pro hac vice before appearing before a
tribunal or administrative agency, this Rule requires the lawyer
to obtain that authority.
Paragraph (c)(2) also provides that a lawyer rendering
services in this jurisdiction on a temporary basis does not
violate this Rule when the lawyer engages in conduct in
anticipation of a proceeding or hearing in a jurisdiction in
which the lawyer is authorized to practice law or in which the
lawyer reasonably expects to be admitted pro hac vice.
Examples of such conduct include meetings with the client,
interviews of potential witnesses, and the review of documents.
Similarly, a lawyer admitted only in another jurisdiction may
engage in conduct temporarily in this jurisdiction in connection
with pending litigation in another jurisdiction in which the
lawyer is or reasonably expects to be authorized to appear,
including taking depositions in this jurisdiction.
When a lawyer has been or reasonably expects to be
admitted to appear before a court or administrative agency,
paragraph (c)(2) also permits conduct by lawyers who are
associated with that lawyer in the matter, but who do not
expect to appear before the court or administrative agency. For
example, subordinate lawyers may conduct research, review
documents, and attend meetings with witnesses in support of
the lawyer responsible for the litigation.
Paragraph (c)(3) permits a lawyer admitted to practice law
in another jurisdiction to perform services on a temporary basis
in this jurisdiction if those services are in or reasonably related
to a pending or potential arbitration, mediation, or other
alternative dispute resolution proceeding in this or another
jurisdiction, if the services arise out of or are reasonably
related to the lawyer’s practice in a jurisdiction in which the
lawyer is admitted to practice. The lawyer, however, must
obtain admission pro hac vice in the case of a court-annexed
arbitration or mediation or otherwise if court rules or law so
require.
Paragraph (c)(4) permits a lawyer admitted in another
jurisdiction to provide certain legal services on a temporary
basis in this jurisdiction that arise out of or are reasonably
related to the lawyer’s practice in a jurisdiction in which the
lawyer is admitted but are not within paragraphs (c)(2) or
(c)(3). These services include both legal services and services
that nonlawyers may perform but that are considered the
practice of law when performed by lawyers.
Paragraphs (c)(3) and (c)(4) require that the services arise
out of or be reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted. A variety of
factors evidence such a relationship. The lawyer’s client may
have been previously represented by the lawyer, or may be
resident in or have substantial contacts with the jurisdiction in
which the lawyer is admitted. The matter, although involving
other jurisdictions, may have a significant connection with that
jurisdiction. In other cases, significant aspects of the lawyer’s
work might be conducted in that jurisdiction or a significant
aspect of the matter may involve the law of that jurisdiction.
The necessary relationship might arise when the client’s
activities or the legal issues involve multiple jurisdictions, such
as when the officers of a multinational corporation survey
potential business sites and seek the services of their lawyer in
assessing the relative merits of each. In addition, the services
may draw on the lawyer’s recognized expertise developed
through the regular practice of law on behalf of clients in
matters involving a particular body of federal, nationally-
uniform, foreign, or international law.
Paragraph (d) identifies two circumstances in which a
lawyer who is admitted to practice in another United States or
a foreign jurisdiction, and is not disbarred or suspended from
practice in any jurisdiction, may establish an office or other
systematic and continuous presence in this jurisdiction for the
practice of law as well as provide legal services on a temporary
basis. Except as provided in paragraphs (d)(1) and (d)(2), a
lawyer who is admitted to practice law in another jurisdiction
and who establishes an office or other systematic or continuous
PROFESSIONAL CONDUCT Rule 5.7
55
presence in this jurisdiction must become admitted to practice
law generally in this jurisdiction.
Paragraph (d)(1) applies to a U.S. or foreign lawyer who
is employed by a client to provide legal services to the client or
its organizational affiliates, i.e., entities that control, are
controlled by, or are under common control with the employer.
This paragraph does not authorize the provision of personal
legal services to the employer’s officers or employees. The
paragraph applies to in-house corporate lawyers, government
lawyers and others who are employed to render legal services
to the employer. The lawyer’s ability to represent the employer
outside the jurisdiction in which the lawyer is licensed
generally serves the interests of the employer and does not
create an unreasonable risk to the client and others because the
employer is well situated to assess the lawyer’s qualifications
and the quality of the lawyer’s work.
If an employed lawyer establishes an office or other
systematic presence in this jurisdiction for the purpose of
rendering legal services to the employer, the lawyer may be
subject to registration or other requirements, including
assessments for client protection funds and mandatory
continuing legal education.
Paragraph (d)(2) recognizes that a lawyer may provide
legal services in a jurisdiction in which the lawyer is not
licensed when authorized to do so by federal or other law,
which includes statute, court rule, executive regulation or
judicial precedent.
A lawyer who practices law in this jurisdiction pursuant to
paragraphs (c) or (d) or otherwise is subject to the disciplinary
authority of this jurisdiction. See Rule 8.5(a).
In some circumstances, a lawyer who practices law in this
jurisdiction pursuant to paragraphs (c) or (d) may have to
inform the client that the lawyer is not licensed to practice law
in this jurisdiction. For example, that may be required when
the representation occurs primarily in this jurisdiction and
requires knowledge of the law of this jurisdiction. See Rule
1.4(b).
Paragraphs (c) and (d) do not authorize communications
advertising legal services in this jurisdiction by lawyers who
are not admitted to practice in this jurisdiction. Whether and
how lawyers may communicate the availability of their
services in this jurisdiction is governed by Rules 7.1 to 7.5.
Rule 5.6. Restrictions on Right to Practice.
Except as permitted by Rule 1.17, 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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
An agreement restricting the right of lawyers to practice
after leaving a firm not only limits their professional autonomy
but also limits the freedom of clients to choose a lawyer.
Paragraph (a) prohibits such agreements except for restrictions
incident to provisions concerning retirement benefits for
service with the firm.
Paragraph (b) prohibits a lawyer from agreeing not to
represent other persons in connection with settling a claim on
behalf of a client.
Rule 5.7. Responsibilities Regarding Law-Related
Services.
(a) A lawyer shall be subject to the Rules of Professional
Conduct with respect to the provision of law-related services,
as defined in paragraph (b), if the law-related services are
provided:
(1) by the lawyer in circumstances that are not distinct
from the lawyer’s provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the
lawyer individually or with others if the lawyer fails to take
reasonable measures to assure that a person obtaining the
law-related services knows that the services are not legal
services and that the protections of the client-lawyer
relationship do not exist.
(b) The term “law-related services” means services that
might reasonably be performed in conjunction with and in
substance are related to the provision of legal services, and that
are not prohibited as unauthorized practice of law when
provided by a nonlawyer.
(Added by SCO 1680 effective April 15, 2009)
COMMENT
When a lawyer performs law-related services or controls
an organization that does so, there exists the potential for
ethical problems. Principal among these is the possibility that
the person for whom the law-related services are performed
fails to understand that the services may not carry with them
the protections normally afforded as part of the client-lawyer
relationship. The recipient of the law-related services may
expect, for example, that the protection of client confidences
and secrets, prohibitions against representation of persons with
conflicting interests, and obligations of a lawyer to maintain
professional independence apply to the provision of
law-related services when that may not be the case.
Rule 5.7 applies to the provision of law-related services
by a lawyer even when the lawyer does not provide any legal
services to the person for whom the law-related services are
performed and whether the law-related services are performed
through a law firm or a separate entity. The Rule identifies the
circumstances in which all of the Rules of Professional
Rule 6.1 ALASKA COURT RULES
56
Conduct apply to the provision of law-related services. Even
when those circumstances do not exist, however, the conduct
of a lawyer involved in the provision of law-related services is
subject to those Rules that apply generally to lawyer conduct,
regardless of whether the conduct involves the provision of
legal services. See, e.g., Rule 8.4.
When law-related services are provided by a lawyer under
circumstances that are not distinct from the lawyer’s provision
of legal services to clients, the lawyer in providing the
law-related services must adhere to the requirements of the
Rules of Professional Conduct as provided in paragraph (a)(1).
Even when the law-related and legal services are provided in
circumstances that are distinct from each other, for example
through separate entities or different support staff within the
law firm, the Rules of Professional Conduct apply to the
lawyer as provided in paragraph (a)(2) unless the lawyer takes
reasonable measures to assure that the recipient of the
law-related services knows that the services are not legal
services and that the protections of the client-lawyer
relationship do not apply.
Law-related services also may be provided through an
entity that is distinct from that through which the lawyer
provides legal services. If the lawyer individually or with
others has control of such an entity’s operations, the Rule
requires the lawyer to take reasonable measures to assure that
each person using the services of the entity knows that the
services provided by the entity are not legal services and that
the Rules of Professional Conduct that relate to the
client-lawyer relationship do not apply. A lawyer’s control of
an entity extends to the ability to direct its operation. Whether
a lawyer has such control will depend upon the circumstances
of the particular case.
When a client-lawyer relationship exists with a person
who is referred by a lawyer to a separate law-related service
entity controlled by the lawyer, individually or with others, the
lawyer must comply with Rule 1.8(a).
In taking the reasonable measures referred to in paragraph
(a)(2) to assure that a person using law-related services
understands the practical effect or significance of the
inapplicability of the Rules of Professional Conduct, the
lawyer should communicate to the person receiving the
law-related services, in a manner sufficient to assure that the
person understands the significance of the fact, that the
relationship of the person to the business entity will not be a
client-lawyer relationship. The communication should be made
before entering into an agreement for provision of or providing
law-related services, and preferably should be in writing.
The burden is upon the lawyer to show that the lawyer has
taken reasonable measures under the circumstances to
communicate the desired understanding. For instance, a
sophisticated user of law-related services, such as a publicly
held corporation, may require a lesser explanation than
someone unaccustomed to making distinctions between legal
services and law-related services, such as an individual seeking
tax advice from a lawyer-accountant or investigative services
in connection with a lawsuit.
Regardless of the sophistication of potential recipients of
law-related services, a lawyer should take special care to keep
separate the provision of law-related and legal services in order
to minimize the risk that the recipient will assume that the
law-related services are legal services. The risk of such
confusion is especially acute when the lawyer renders both
types of services with respect to the same matter. Under some
circumstances the legal and law-related services may be so
closely entwined that they cannot be distinguished from each
other, and the requirement of disclosure and consultation
imposed by paragraph (a)(2) of the Rule cannot be met. In such
a case a lawyer will be responsible for assuring that both the
lawyer’s conduct and, to the extent required by Rule 5.3, that
of nonlawyer employees in the distinct entity that the lawyer
controls complies in all respects with the Rules of Professional
Conduct.
A broad range of economic and other interests of clients
may be served by lawyers’ engaging in the delivery of
law-related services. Examples of law-related services include
providing title insurance, financial planning, accounting, trust
services, real estate counseling, legislative lobbying, economic
analysis, social work, psychological counseling, tax
preparation, and patent, medical, or environmental consulting.
When a lawyer is obliged to accord the recipients of such
services the protections of those Rules that apply to the
client-lawyer relationship, the lawyer must take special care to
heed the proscriptions of the Rules addressing conflict of
interest (Rules 1.7 through 1.11, especially Rules 1.7(a)(2) and
1.8(a), (b) and (f)), and to scrupulously adhere to the
requirements of Rule 1.6 relating to disclosure of confidential
information. The promotion of the law-related services must
also in all respects comply with Rules 7.1 through 7.3, dealing
with advertising and solicitation. In that regard, lawyers should
take special care to identify the obligations that may be
imposed as a result of a jurisdiction’s decisional law.
When the full protections of all of the Rules of
Professional Conduct do not apply to the provision of
law-related services, principles of law external to the Rules, for
example, the law of principal and agent, govern the legal duties
owed to those receiving the services. Those other legal
principles may establish a different degree of protection for the
recipient with respect to confidentiality of information,
conflicts of interest and permissible business relationships with
clients. See also Rule 8.4 (Misconduct).
PUBLIC SERVICE
Rule 6.1. Voluntary Pro Bono Public Service.
Every lawyer has a professional responsibility to provide
legal services to those unable to pay. A lawyer should aspire to
render at least (50) hours of pro bono public legal services per
year. In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the (50) hours of
legal services without fee or expectation of fee to:
(1) persons of limited means or
PROFESSIONAL CONDUCT Rule 6.1
57
(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 any 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.
(SCO 1123 effective July 15, 1993; amended by SCO 1496
effective April 15, 2003; rescinded and repromulgated by SCO
1680 effective April 15, 2009)
COMMENT
Every lawyer, regardless of professional prominence or
professional work load, has a responsibility to provide legal
services to those unable to pay, and personal involvement in
the problems of the disadvantaged can be one of the most
rewarding experiences in the life of a lawyer. The American
Bar Association urges all lawyers to provide a minimum of 50
hours of pro bono services annually. States, however, may
decide to choose a higher or lower number of hours of annual
service (which may be expressed as a percentage of a lawyer’s
professional time) depending upon local needs and local
conditions. It is recognized that in some years a lawyer may
render greater or fewer hours than the annual standard
specified, but during the course of his or her legal career, each
lawyer should render on average per year, the number of hours
set forth in this Rule. Services can be performed in civil
matters or in criminal or quasi-criminal matters for which there
is no government obligation to provide funds for legal
representation, such as post-conviction death penalty appeal
cases.
Paragraphs (a)(1) and (2) recognize the critical need for
legal services that exists among persons of limited means by
providing that a substantial majority of the legal services
rendered annually to the disadvantaged be furnished without
fee or expectation of fee. Legal services under these
paragraphs consist of a full range of activities, including
individual and class representation, the provision of legal
advice, legislative lobbying, administrative rule making and
the provision of free training or mentoring to those who
represent persons of limited means. The variety of these
activities should facilitate participation by government
lawyers, even when restrictions exist on their engaging in the
outside practice of law.
Persons eligible for legal services under paragraphs (a)(1)
and (2) are those who qualify for participation in programs
funded by the Legal Services Corporation and those whose
incomes and financial resources are slightly above the
guidelines utilized by such programs but nevertheless, cannot
afford counsel. Legal services can be rendered to individuals or
to organizations such as homeless shelters, battered women’s
centers and food pantries that serve those of limited means.
The term “governmental organizations” includes, but is not
limited to, public protection programs and sections of
governmental or public sector agencies.
Because service must be provided without fee or
expectation of fee, the intent of the lawyer to render free legal
services is essential for the work performed to fall within the
meaning of paragraphs (a)(1) and (2). Accordingly, services
rendered cannot be considered pro bono if an anticipated fee is
uncollected, but the award of statutory attorneys’ fees in a case
originally accepted as pro bono would not disqualify such
services from inclusion under this section. Lawyers who do
receive fees in such cases are encouraged to contribute an
appropriate portion of such fees to organizations or projects
that benefit persons of limited means.
While it is possible for a lawyer to fulfill the annual
responsibility to perform pro bono services exclusively
through activities described in paragraphs (a)(1) and (2), to the
extent that any hours of service remained unfulfilled, the
remaining commitment can be met in a variety of ways as set
forth in paragraph (b). Constitutional, statutory or regulatory
restrictions may prohibit or impede government and public
sector lawyers and judges from performing the pro bono
services outlined in paragraphs (a)(1) and (2). Accordingly,
where those restrictions apply, government and public sector
lawyers and judges may fulfill their pro bono responsibility by
performing services outlined in paragraph (b).
Paragraph (b)(1) includes the provision of certain types of
legal services to those whose incomes and financial resources
place them above limited means. It also permits the pro bono
lawyer to accept a substantially reduced fee for services.
Examples of the types of issues that may be addressed under
this paragraph include First Amendment claims, Title VII
claims and environmental protection claims. Additionally, a
wide range of organizations may be represented, including
social service, medical research, cultural and religious groups.
Paragraph (b)(2) covers instances in which lawyers agree
to and receive a modest fee for furnishing legal services to
persons of limited means. Participation in judicare programs
and acceptance of court appointments in which the fee is
substantially below a lawyer’s usual rate are encouraged under
this section.
Paragraph (b)(3) recognizes the value of lawyers engaging
in activities that improve the law, the legal system or the legal
profession. Serving on bar association committees, serving on
boards of pro bono or legal services programs, taking part in
Law Day activities, acting as a continuing legal education
instructor, a mediator or an arbitrator and engaging in
Rule 6.2 ALASKA COURT RULES
58
legislative lobbying to improve the law, the legal system or the
profession are a few examples of the many activities that fall
within this paragraph.
Because the provision of pro bono services is a
professional responsibility, it is the individual ethical
commitment of each lawyer. Nevertheless, there may be times
when it is not feasible for a lawyer to engage in pro bono
services. At such times a lawyer may discharge the pro bono
responsibility by providing financial support to organizations
providing free legal services to persons of limited means. Such
financial support should be reasonably equivalent to the value
of the hours of service that would have otherwise been
provided. In addition, at times it may be more feasible to
satisfy the pro bono responsibility collectively, as by a firm’s
aggregate pro bono activities.
Because the efforts of individual lawyers are not enough
to meet the need for free legal services that exists among
persons of limited means, the government and the profession
have instituted additional programs to provide those services.
Every lawyer should financially support such programs, in
addition to either providing direct pro bono services or making
financial contributions when pro bono service is not feasible.
Law firms should act reasonably to enable and encourage
all lawyers in the firm to provide the pro bono legal services
called for by this Rule.
The responsibility set forth in this Rule is not intended to
be enforced through disciplinary process.
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 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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
A lawyer ordinarily is not obliged to accept a client whose
character or cause the lawyer regards as repugnant. The
lawyer’s freedom to select clients is, however, qualified. All
lawyers have a responsibility to assist in providing pro bono
public service. See Rule 6.1. An individual lawyer fulfills this
responsibility by accepting a fair share of unpopular matters or
indigent or unpopular clients. A lawyer may also be subject to
appointment by a court to serve unpopular clients or persons
unable to afford legal services.
Appointed Counsel
For good cause a lawyer may seek to decline an
appointment to represent a person who cannot afford to retain
counsel or whose cause is unpopular. Good cause exists if the
lawyer could not handle the matter competently, see Rule 1.1,
or if undertaking the representation would result in an
improper conflict of interest, for example, when 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. A lawyer may also seek to decline an
appointment if acceptance would be unreasonably
burdensome, for example, when it would impose a financial
sacrifice so great as to be unjust.
An appointed lawyer has the same obligations to the client
as retained counsel, including the obligations of loyalty and
confidentiality, and is subject to the same limitations on the
client-lawyer relationship, such as the obligation to refrain
from assisting the client in violation of the Rules.
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
or the lawyer’s firm. The lawyer shall not knowingly
participate in a decision or action of the organization:
(a) if participating in the decision or action would be
incompatible with the lawyer’s obligations to a client under
Rule 1.7; or
(b) where the decision or action 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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
Lawyers should be encouraged to support and participate
in legal service organizations. A lawyer who is an officer or a
member of such an organization does not thereby have a
client-lawyer relationship with persons served by the
organization. However, there is potential conflict between the
interests of such persons and the interests of the lawyer’s
clients. If the possibility of such conflict disqualified a lawyer
from serving on the board of a legal services organization, the
profession’s involvement in such organizations would be
severely curtailed.
It may be necessary in appropriate cases to reassure a
client of the organization that the representation will not be
affected by conflicting loyalties of a member of the board.
Established, written policies in this respect can enhance the
credibility of such assurances.
Rule 6.4. Law Reform Activities Affecting Client
Interests.
PROFESSIONAL CONDUCT Rule 7.1
59
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 benefited by a decision in which
the lawyer participates, the lawyer shall make an appropriate
disclosure within the organization, but need not identify the
client.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
COMMENT
Lawyers involved in organizations seeking law reform
generally do not have a client-lawyer relationship with the
organization. Otherwise, it might follow that a lawyer could
not be involved in a bar association law reform program that
might indirectly affect a client. See also Rule 1.2(b). For
example, a lawyer specializing in antitrust litigation might be
regarded as disqualified from participating in drafting revisions
of rules governing that subject. In determining the nature and
scope of participation in such activities, a lawyer should be
mindful of obligations to clients under other Rules, particularly
Rule 1.7. A lawyer is professionally obligated to protect the
integrity of the program by making an appropriate disclosure
within the organization when the lawyer knows a private client
might be materially benefited.
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.
(Added by SCO 1680 effective April 15, 2009)
COMMENT
Legal services organizations, courts and various nonprofit
organizations have established programs through which
lawyers provide short-term limited legal services – such as
advice or the completion of legal forms – that will assist
persons to address their legal problems without further
representation by a lawyer. In these programs, such as legal-
advice hotlines, advice-only clinics, or pro se counseling
programs, a client-lawyer relationship is established, but there
is no expectation that the lawyer’s representation of the client
will continue beyond the limited consultation. Such programs
are normally operated under circumstances in which it is not
feasible for a lawyer to systematically screen for conflicts of
interest as is generally required before undertaking a
representation. See, e.g., Rules 1.7, 1.9, and 1.10.
A lawyer who provides short-term limited legal services
pursuant to this Rule must secure the client’s informed consent
to the limited scope of the representation. See Rule 1.2(c). If a
short-term limited representation would not be reasonable
under the circumstances, the lawyer may offer advice to the
client but must also advise the client of the need for further
assistance of counsel. Except as provided in this Rule, the
Rules of Professional Conduct, including Rules 1.6 and 1.9(c),
are applicable to the limited representation.
Because a lawyer who is representing a client in the
circumstances addressed by this Rule ordinarily is not able to
check systematically for conflicts of interest, paragraph (a)
requires compliance with Rules 1.7 or 1.9(a) only if the lawyer
knows that the representation presents a conflict of interest for
the lawyer, and with Rule 1.10 only if the lawyer knows that
another lawyer in the lawyer’s firm is disqualified by Rules 1.7
or 1.9(a) in the matter.
Because the limited nature of the services significantly
reduces the risk of conflicts of interest with other matters being
handled by the lawyer’s firm, paragraph (b) provides that Rule
1.10 is inapplicable to a representation governed by this Rule
except as provided by paragraph (a)(2). Paragraph (a)(2)
requires the participating lawyer to comply with Rule 1.10
when the lawyer knows that the lawyer’s firm is disqualified
by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a
lawyer’s participation in a short-term limited legal services
program will not preclude the lawyer’s firm from undertaking
or continuing the representation of a client with interests
adverse to a client being represented under the program’s
auspices. Nor will the personal disqualification of a lawyer
participating in the program be imputed to other lawyers
participating in the program.
If, after commencing a short-term limited representation
in accordance with this Rule, a lawyer undertakes to represent
the client in the matter on an ongoing basis, Rules 1.7, 1.9(a),
and 1.10 become applicable.
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 or
any prospective client’s need for legal services. A
communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law,
or omits a fact necessary to make the statement considered as a
whole not materially misleading;
(b) is likely to create a reasonable but unjustified
expectation about results the lawyer can achieve, or states or
implies that the lawyer can achieve results by means that
Rule 7.2 ALASKA COURT RULES
60
violate the Rules of Professional Conduct or other law; or
(c) compares the lawyer’s services with other lawyers’
services, unless the comparison can be factually substantiated.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1905 effective October 15, 2017)
ALASKA COMMENT
The Committee revised Model Rule 7.1 to address the
situation in which a lawyer might provide misleading
information with regard to a potential client’s needs for legal
services from a particular lawyer.
COMMENT
This Rule governs all communications about a lawyer’s
services, including advertising permitted by Rule 7.2.
Whatever means are used to make known a lawyer’s services,
statements about them must be truthful.
Truthful statements that are misleading are also prohibited
by this Rule. A truthful statement is misleading if it omits a
fact necessary to make the lawyer’s communication considered
as a whole not materially misleading. A truthful statement is
also misleading if there is a substantial likelihood that it will
lead a reasonable person to formulate a specific conclusion
about the lawyer or the lawyer’s services for which there is no
reasonable factual foundation.
An advertisement that truthfully reports a lawyer’s
achievements on behalf of clients or former clients may be
misleading if presented so as to lead a reasonable person to
form an unjustified expectation that the same results could be
obtained for other clients in similar matters without reference
to the specific factual and legal circumstances of each client’s
case. Similarly, an unsubstantiated comparison of the lawyer’s
services or fees with the services or fees of other lawyers may
be misleading if presented with such specificity as would lead
a reasonable person to conclude that the comparison can be
substantiated. The inclusion of an appropriate disclaimer or
qualifying language may preclude a finding that a statement is
likely to create unjustified expectations or is otherwise
misleading.
See also Rule 8.4(e) for the prohibition against stating or
implying 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.
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 or qualified lawyer referral service. A qualified
lawyer referral service is a lawyer referral service that has been
approved by an appropriate regulatory authority;
(3) pay for a law practice in accordance with Rule 1.17;
and
(4) refer clients to another lawyer or a nonlawyer
professional pursuant to an agreement not otherwise prohibited
under these Rules that provides for the other person to refer
clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of
the agreement.
(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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1905 effective October 15, 2017)
COMMENT
To assist the public in learning about and obtaining legal
services, lawyers should be allowed to make known their
services not only through reputation but also through organized
information campaigns in the form of advertising. Advertising
involves an active quest for clients, contrary to the tradition
that a lawyer should not seek clientele. However, the public’s
need to know about legal services can be fulfilled in part
through advertising. This need is particularly acute in the case
of persons of moderate means who have not made extensive
use of legal services. The interest in expanding public
information about legal services ought to prevail over
considerations of tradition. Nevertheless, advertising by
lawyers entails the risk of practices that are misleading or
overreaching.
This Rule permits public dissemination of information
concerning a lawyer’s name, firm name, and contact
information; the kinds of services the lawyer will undertake;
the basis on which the lawyer’s fees are determined, including
prices for specific services and payment and credit
arrangements; a lawyer’s foreign language ability; names of
references and, with their consent, names of clients regularly
represented; and other information that might invite the
attention of those seeking legal assistance.
Questions of effectiveness and taste in advertising are
matters of speculation and subjective judgment. Some
jurisdictions have had extensive prohibitions against television
and other forms of advertising, against advertising going
beyond specified facts about a lawyer, or against “undignified”
advertising. Television, the Internet, and other forms of
electronic communications are now among the most powerful
media for getting information to the public, particularly
PROFESSIONAL CONDUCT Rule 7.3
61
persons of low and moderate income; prohibiting television,
Internet, and other forms of electronic advertising, therefore,
would impede the flow of information about legal services to
many sectors of the public. Limiting the information that may
be advertised has a similar effect and assumes that the bar can
accurately forecast the kind of information that the public
would regard as relevant. But see Rule 7.3(a) for the
prohibition against a solicitation through a real-time electronic
exchange initiated by the lawyer.
Neither this Rule nor Rule 7.3 prohibits communications
authorized by law, such as notice to members of a class in
class action litigation.
Paying Others to Recommend a Lawyer
Except as permitted under (b)(1)-(b)(4), lawyers are not
permitted to pay others for recommending the lawyer’s
services or for channeling professional work in a manner that
violates Rule 7.3. A communication contains a
recommendation if it endorses or vouches for a lawyer’s
credentials, abilities, competence, character, or other
professional qualities. Paragraph (b)(1), however, allows a
lawyer to pay for advertising and communications permitted
by this Rule, including the costs of print directory listings, on-
line directory listings, newspaper ads, television and radio
airtime, domain-name registrations, sponsorship fees, Internet-
based advertisements, and group advertising. A lawyer may
compensate employees, agents and vendors who are engaged
to provide marketing or client-development services, such as
publicists, public-relations personnel, business-development
staff and website designers. Moreover, a lawyer may pay
others for generating client leads, such as Internet-based client
leads, as long as the lead generator does not recommend the
lawyer, any payment to the lead generator is consistent with
Rules 1.5(e) (division of fees) and 5.4 (professional
independence of the lawyer), and the lead generator’s
communications are consistent with Rule 7.1 (communications
concerning a lawyer’s services). To comply with Rule 7.1, a
lawyer must not pay a lead generator that states, implies, or
creates a reasonable impression that it is recommending the
lawyer, is making the referral without payment from the
lawyer, or has analyzed a person’s legal problems when
determining which lawyer should receive the referral. See also
Rule 5.3 (duties of lawyers and law firms with respect to the
conduct of nonlawyers); Rule 8.4(a) (duty to avoid violating
the Rules through the acts of another).
A lawyer may pay the usual charges of a legal service
plan or a not-for-profit or qualified lawyer referral service. A
legal service plan is a prepaid or group legal service plan or a
similar delivery system that assists people who seek to secure
legal representation. A lawyer referral service, on the other
hand, is any organization that holds itself out to the public as a
lawyer referral service. Consequently, this Rule only permits a
lawyer to pay the usual charges of a not-for-profit or qualified
lawyer referral service. A qualified lawyer referral service is
one that is approved by an appropriate regulatory authority.
A lawyer who accepts assignments or referrals from a
legal service plan or referrals from a lawyer referral service
must act reasonably to assure himself or herself that the
activities of the plan or service are compatible with the
lawyer’s professional obligations. See Rule 5.3. Legal service
plans and lawyer referral services may communicate with the
public, but such communication must be in conformity with
these Rules. Thus, advertising must not be false or misleading,
as would be the case if the communications of a group
advertising program or a group legal services plan would
mislead the public to think that it was a lawyer referral service
sponsored by a state agency or bar association. Nor could the
lawyer allow in-person, telephonic, or real-time contacts that
would violate Rule 7.3.
A lawyer also may agree to refer clients to another lawyer
or a nonlawyer professional, in return for the undertaking of
that person to refer clients or customers to the lawyer. Such
reciprocal referral arrangements must not interfere with the
lawyer’s professional judgment as to making referrals or as to
providing substantive legal services. See Rules 2.1 and 5.4(c).
Except as provided in Rule 1.5(e), a lawyer who receives
referrals from a lawyer or nonlawyer professional must not pay
anything solely for the referral, but the lawyer does not violate
paragraph (b) of this Rule by agreeing to refer clients to the
other lawyer or nonlawyer professional, so long as the
reciprocal referral agreement is not exclusive and the client is
informed of the referral agreement. Conflicts of interest
created by such arrangements are governed by Rule 1.7.
Reciprocal referral agreements should not be of indefinite
duration and should be reviewed periodically to determine
whether they comply with these Rules. This Rule does not
restrict referrals or divisions of revenues or net income among
lawyers within firms comprised of multiple entities.
Rule 7.3. Solicitation of Clients.
(a) A lawyer shall not by in-person, live telephone, or
real-time electronic contact solicit professional employment
when a significant motive for the lawyer’s doing so is the
lawyer’s pecuniary gain, unless the person contacted:
(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
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 target of the solicitation has made known to the
lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress, or
harassment.
(c) Every written, recorded, or electronic communication
from a lawyer soliciting professional employment from anyone
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
Rule 7.3 ALASKA COURT RULES
62
(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.
(SCO 1123 effective July 15, 1993; amended by SCO 1426,
effective April 15, 2001; rescinded and repromulgated by SCO
1680 effective April 15, 2009; amended by SCO 1905
effective October 15, 2017)
COMMENT
There is a potential for abuse when a solicitation involves
direct in-person, live telephone or real-time electronic contact
by a lawyer with someone known to need legal services. These
forms of contact subject a person to the private importuning of
the trained advocate in a direct interpersonal encounter. The
person, who may already feel overwhelmed by the
circumstances giving rise to the need for legal services, may
find it difficult fully to evaluate all available alternatives with
reasoned judgment and appropriate self-interest in the face of
the lawyer’s presence and insistence upon being retained
immediately. The situation is fraught with the possibility of
undue influence, intimidation, and over-reaching.
This potential for abuse inherent in direct in-person, live
telephone or real-time electronic solicitation justifies its
prohibition, particularly since lawyers have alternative means
of conveying necessary information to those who may be in
need of legal services. In particular, communications can be
mailed or transmitted by email or other electronic means that
do not involve real-time contact and do not violate other laws
governing solicitations. These forms of communications and
solicitations make it possible for the public to be informed
about the need for legal services, and about the qualifications
of available lawyers and law firms, without subjecting the
public to direct in-person, telephone or real-time electronic
persuasion that may overwhelm a person’s judgment.
The use of general advertising and written, recorded or
electronic communications to transmit information from
lawyer to the public, rather than direct in-person, live
telephone or real-time electronic contact, will help to assure
that the information flows cleanly as well as freely. The
contents of advertisements and communications permitted
under Rule 7.2 can be permanently recorded so that they
cannot be disputed and may be shared with others who know
the lawyer. This potential for informal review is itself likely to
help guard against statements and claims that might constitute
false and misleading communications, in violation of Rule 7.1.
The contents of direct in-person, live telephone or real-time
electronic contact can be disputed and may not be subject to
third-party scrutiny. Consequently, they are much more likely
to approach (and occasionally cross) the dividing line between
accurate representations and those that are false and
misleading.
There is far less likelihood that a lawyer would engage in
abusive practices against a former client, or a person with
whom the lawyer has a close personal or family relationship,
or in situations in which the lawyer is motivated by
considerations other than the lawyer’s pecuniary gain. Nor is
there a serious potential for abuse when the person contacted is
a lawyer. Consequently, the general prohibition in Rule 7.3(a)
and the requirements of Rule 7.3(c) are not applicable in those
situations. Also, paragraph (a) is not intended to prohibit a
lawyer from participating in constitutionally protected
activities of public or charitable legal- service organizations or
bona fide political, social, civic, fraternal, employee, or trade
organizations whose purposes include providing or
recommending legal services to their members or beneficiaries.
But even permitted forms of solicitation can be abused.
Thus, any solicitation which contains information which is
false or misleading within the meaning of Rule 7.1, which
involves coercion, duress or harassment within the meaning of
Rule 7.3(b)(2), or which involves contact with someone who
has made known to the lawyer a desire not to be solicited by
the lawyer within the meaning of Rule 7.3(b)(1) is prohibited.
Moreover, if after sending a letter or other communication as
permitted by Rule 7.2 the lawyer receives no response, any
further effort to communicate with the recipient of the
communication may violate the provisions of Rule 7.3(b).
This Rule is not intended to prohibit a lawyer from
contacting representatives of organizations or groups that may
be interested in establishing a group or prepaid legal plan for
their members, insureds, beneficiaries or other third parties for
the purpose of informing such entities of the availability of and
details concerning the plan or arrangement which the lawyer or
lawyer’s firm is willing to offer. This form of communication
is not directed to people who are seeking legal services for
themselves. Rather, it is usually addressed to an individual
acting in a fiduciary capacity seeking a supplier of legal
services for others who may, if they choose, become
prospective clients of the lawyer. Under these circumstances,
the activity which the lawyer undertakes in communicating
with such representatives and the type of information
transmitted to the individual are functionally similar to and
serve the same purpose as advertising permitted under Rule
7.2.
The requirement in Rule 7.3(c) that certain communica-
tions be marked “Advertising Material” does not apply to
communications sent in response to requests of potential
clients or their spokespersons or sponsors. General announce-
ments by lawyers, including changes in personnel or office
location, do not constitute communications soliciting pro-
fessional employment from a client known to be in need of
legal services within the meaning of this Rule.
Paragraph (d) of this Rule permits a lawyer to participate
with an organization which uses personal contact to solicit
members for its group or prepaid legal service plan, provided
that the personal contact is not undertaken by any lawyer who
would be a provider of legal services through the plan. The
organization must not be owned by or directed (whether as
manager or otherwise) by any lawyer or law firm that
participates in the plan. For example, paragraph (d) would not
PROFESSIONAL CONDUCT Rule 7.5
63
permit a lawyer to create an organization controlled directly or
indirectly by the lawyer and use the organization for the
in-person or telephone solicitation of legal employment of the
lawyer through memberships in the plan or otherwise. The
communication permitted by these organizations also must not
be directed to a person known to need legal services in a
particular matter, but is to be designed to inform potential plan
members generally of another means of affordable legal
services. Lawyers who participate in a legal service plan must
reasonably assure that the plan sponsors are in compliance
with Rules 7.1, 7.2, and 7.3(b). See 8.4(a).
Rule 7.4. Communication of Fields of Practice and
Specialization.
A lawyer may communicate the fact that the lawyer does
or does not practice in particular fields of law. A lawyer shall
not state or imply that the lawyer is a “specialist,” certified,” or
words of similar import except as follows:
(a) 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; and
(b) a lawyer may communicate the fact that the lawyer
has been certified as a specialist in a field of law by a named
organization or authority, but only if that certification is
granted by an organization or authority whose specialty
certification program is accredited by the American Bar
Association.
(SCO 1123 effective July 15, 1993; amended by SCO 1379
effective April 15, 2000; rescinded and repromulgated by
SCO 1680 effective April 15, 2009)
COMMENT
This Rule permits a lawyer to indicate areas of practice in
communications about the lawyer’s services; for example, in a
telephone directory or other advertising. If a lawyer practices
only in certain fields, or will not accept matters except in those
fields, the lawyer is permitted to so indicate. All
communications are, however, subject to the “false and
misleading” standard applied in Rule 7.1 to communications
concerning a lawyer’s services.
A lawyer may not communicate that the lawyer is a
specialist or has been recognized or certified as a specialist in a
particular field of law, except as provided by this rule.
Recognition of specialization in patent matters is a matter of
long established policy of the Patent and Trademark Office, as
reflected in paragraph (a). The American Bar Association’s
Model Rule 7.4 also permits attorneys who specialize in
admiralty law to use the designation “proctor in admiralty” or
otherwise hold themselves out as specialists in admiralty. This
exception was not included in Alaska’s Professional Conduct
Rule 7.4 because the Alaska Bar Association’s Committee on
the Rules of Professional Conduct concluded that under
modern practice the field of admiralty is no longer a unique
specialization.
Paragraph (b) permits a lawyer to communicate that the
lawyer has been certified as specialist in a field of law when
the American Bar Association has accredited the
organization’s specialty program to grant the certification.
Certification procedures imply that an objective entity has
recognized a lawyer’s higher degree of specialized ability than
is suggested by general licensure to practice law. Those
objective entities may be expected to apply standards of
competence, experience, and knowledge to ensure that a
lawyer’s recognition as a specialist is meaningful and reliable.
In order to ensure that consumers can obtain access to useful
certification information, the name of the certifying
organization or agency must be included in any
communication regarding the certification.
See Peel v. Attorney Registration & Disciplinary Comm’n,
496 U.S. 91, 110 S. Ct. 2281, 110 L.Ed.2d 83 (1990).
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 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 shall not state or imply that they practice in
a partnership or other organization unless the relationship
stated or implied in fact exists.
(e) The term “of counsel” shall be used only to refer to a
lawyer who has a close continuing relationship with the firm.
f) The term “professional designation” as used in this
rule includes a website address or other electronic reference
used to identify the law firm.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
ALASKA COMMENT
The ABA commentary notes that attorneys who share
office facilities should not call themselves “Smith and Jones”
or any other name suggesting partnership. Similarly, the
committee thought that a sole practitioner should not use “and
associates” or other language implying a group practice. The
committee added subsection (e).
The term “of counsel” contemplates either that the lawyer
Rule 8.1 ALASKA COURT RULES
64
practices in the offices of the lawyer or law firm to which the
lawyer is “of counsel,” or that the lawyer is in regular and
frequent contact with the lawyer or law firm. The term shall
not be applied to one who is merely a forwarder or receiver of
legal business. The fact that a lawyer emphasizes a particular
field and is willing to accept business from several firms does
not make him “of counsel” to all those firms.
COMMENT
A firm may be designated by the names of all or some of
its members, by the names of deceased members where there
has been a continuing succession in the firm’s identity or by a
trade name such as the “ABC Legal Clinic.” A lawyer or law
firm may also be designated by a distinctive website address or
comparable professional designation. Although the United
States Supreme Court has held that legislation may prohibit the
use of trade names in professional practice, use of such names
in law practice is acceptable so long as it is not misleading. If a
private firm uses a trade name that includes a geographical
name such as “Springfield Legal Clinic,” an express disclaimer
that it is a public legal aid agency may be required to avoid a
misleading implication. It may be observed that any firm name
including the name of a deceased partner is, strictly speaking, a
trade name. The use of such names to designate law firms has
proven a useful means of identification. However, it is
misleading to use the name of a lawyer not associated with the
firm or a predecessor of the firm, or the name of a nonlawyer.
With regard to paragraph (d), lawyers sharing office
facilities, but who are not in fact associated with each other in
a law firm, may not denominate themselves as, for example,
“Smith and Jones,” for that title suggests that they are
practicing law together in a firm.
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.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April1 5, 2009)
COMMENT
The duty imposed by this Rule extends to persons seeking
admission to the bar as well as to lawyers. Hence, if a person
makes a material false statement in connection with an
application for admission, it may be the basis for subsequent
disciplinary action if the person is admitted, and in any event
may be relevant in a subsequent admission application. The
duty imposed by this Rule applies to a lawyer’s own admission
or discipline as well as that of others. Thus, it is a separate
professional offense for a lawyer to knowingly make a mis-
representation or omission in connection with a disciplinary
investigation of the lawyer’s own conduct. Paragraph (b) of
this Rule also requires correction of any prior misstatement in
the matter that the applicant or lawyer may have made and
affirmative clarification of any misunderstanding on the part of
the admissions or disciplinary authority of which the person
involved becomes aware.
This Rule is subject to the provisions of the fifth
amendment of the United States Constitution and correspond-
ing provisions of state constitutions. A person relying on such
a provision in response to a question, however, should do so
openly and not use the right of nondisclosure as a justification
for failure to comply with this Rule.
A lawyer representing an applicant for admission to the
bar, or representing a lawyer who is the subject of a
disciplinary inquiry or proceeding, is governed by the rules
applicable to the client-lawyer relationship, including Rule 1.6
and, in some cases, Rule 3.3.
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 Canon 5 of the Code
of Judicial Conduct.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
ALASKA COMMENT
ABA Model Professional Conduct Rule 8.2(b) declares
that any lawyer who is a candidate for judicial office “shall
comply with the applicable provisions of the Code of Judicial
Conduct.” But every judge standing for retention is a “lawyer
who is a candidate for judicial office”, at least as that phrase is
defined in the Terminology section of the Alaska Code of
Judicial Conduct. Thus, Model Rule 8.2(b) appears to say that
if a judge standing for retention violates any provision of the
Code of Judicial Conduct, this violation will also constitute a
bar offense—because, for a sitting judge, every provision of
the Code of Judicial Conduct is an “applicable provision”.
The Committee concludes, from the COMMENT to
Professional Conduct Rule 8.2(b), that Rule 8.2(b) was
intended to make sure that lawyers who are not yet judges, but
who are candidates for judicial office, abide by the applicable
restrictions on political activity set forth in Canon 5 of the
Code of Judicial Conduct. Rule 8.2(b) was not intended to
make a current judge’s violation of any other provision of the
Code of Judicial Conduct a bar offense if the violation occurs
PROFESSIONAL CONDUCT Rule 8.4
65
while the judge is a “candidate for judicial office” – i.e., while
the judge is standing for retention.
COMMENT
Assessments by lawyers are relied on in evaluating the
professional or personal fitness of persons being considered for
election or appointment to judicial office and to public legal
offices, such as attorney general, prosecuting attorney and
public defender. Expressing honest and candid opinions on
such matters contributes to improving the administration of
justice. Conversely, false statements by a lawyer can unfairly
undermine public confidence in the administration of justice.
When a lawyer seeks judicial office, the lawyer should be
bound by applicable limitations on political activity.
To maintain the fair and independent administration of
justice, lawyers are encouraged to continue traditional efforts
to defend judges and courts unjustly criticized.
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 disciplinary authority unless the lawyer
reasonably believes that the misconduct has been or will
otherwise be reported.
(b) A lawyer who knows that a judge has committed a
violation of applicable rules of judicial conduct that raises a
substantial question as to the judge’s fitness for office shall
inform the appropriate disciplinary authority unless the lawyer
reasonably believes that the misconduct has been or will
otherwise be reported.
(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’ or
judges’ assistance program.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009)
ALASKA COMMENT
The Committee added language from Judicial Canon
3D(1) to paragraphs (a) and (b) to reflect that a lawyer is not
required to report misconduct if the lawyer reasonably believes
that the misconduct has been or will be reported.
The Committee also amended paragraph (c) by adding a
reference to a judges’ assistance program. This conforms the
language of the rule to the language of the ABA COMMENT,
which speaks equally of lawyers’ assistance programs and
judges’ assistance programs.
COMMENT
Self-regulation of the legal profession requires that
members of the profession initiate disciplinary investigation
when they know of a violation of the Rules of Professional
Conduct. Lawyers have a similar obligation with respect to
judicial misconduct. An apparently isolated violation may
indicate a pattern of misconduct that only a disciplinary
investigation can uncover. Reporting a violation is especially
important where the victim is unlikely to discover the offense.
A report about misconduct is not required where it would
involve violation of Rule 1.6. However, a lawyer should
encourage a client to consent to disclosure where prosecution
would not substantially prejudice the client’s interests.
If a lawyer were obliged to report every violation of the
Rules, the failure to report any violation would itself be a
professional offense. Such a requirement existed in many
jurisdictions but proved to be unenforceable. This Rule limits
the reporting obligation to those offenses that a self-regulating
profession must vigorously endeavor to prevent. A measure of
judgment is, therefore, required in complying with the
provisions of this Rule. The term “substantial” refers to the
seriousness of the possible offense and not the quantum of
evidence of which the lawyer is aware. A report should be
made to the bar disciplinary agency unless some other agency,
such as a peer review agency, is more appropriate in the
circumstances. Similar considerations apply to the reporting of
judicial misconduct.
The duty to report professional misconduct does not apply
to a lawyer retained to represent a lawyer whose professional
conduct is in question. Such a situation is governed by the
Rules applicable to the client-lawyer relationship.
The duty to report misconduct is subordinate to the duty
of confidentiality set forth in Rule 1.6.
Information about a lawyer’s or judge’s misconduct or
fitness may be received by a lawyer in the course of that
lawyer’s participation in an approved lawyers or judges
assistance program. In that circumstance, providing for an
exception to the reporting requirements of paragraphs (a) and
(b) of this Rule encourages lawyers and judges to seek
treatment through such a program. Conversely, without such
an exception, lawyers and judges may hesitate to seek
assistance from these programs, which may then result in
additional harm to their professional careers and additional
injury to the welfare of clients and the public. These Rules do
not otherwise address the confidentiality of information
received by a lawyer or judge participating in an approved
lawyers’ or judges’ assistance program; such an obligation,
however, may be imposed by the rules of the program or other
law.
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
Rule 8.4 ALASKA COURT RULES
66
other respects;
(c) engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation that reflects adversely on the
lawyer’s fitness to practice law;
(d) state or imply an ability either to influence a
government agency or official or to achieve results by means
that violate the Rules of Professional Conduct or other law; or
(e) knowingly assist a judge or judicial officer in conduct
that is a violation of applicable rules of judicial conduct or
other law.
(f) engage in conduct that the lawyer knows is
harassment or invidious discrimination during the lawyer’s
professional relations with (1) officers or employees of a
tribunal; (2) lawyers, paralegals, and others working for other
law firms; (3) parties, regardless of whether they are
represented by counsel; (4) witnesses; or (5) seated jurors.
In addition, it is professional misconduct for a lawyer to
knowingly engage in harassment or invidious discrimination in
the lawyer’s dealings with the lawyers, paralegals, and others
working for that lawyer or for that lawyer’s law firm, if the
lawyer’s conduct results in a final agency or judicial
determination of employment misconduct or discrimination.
This rule does not prohibit a lawyer from engaging in
legitimate counseling or advocacy when a person’s
membership in a protected class is material.
This rule does not limit the ability of a lawyer to accept or
decline representation in any matter. Nor does it limit the
ability of a lawyer to withdraw from a representation in
accordance with Rule 1.16.
(g) For purposes of paragraph (f)
(1) “Harassment” means unwelcome conduct, whether
verbal or physical, that has no reasonable relation to a
legitimate purpose and is so severe or sustained that a
reasonable person would consider the conduct intimidating or
abusive.
(2) “Invidious discrimination” means unequal treatment
of a person because of their membership in a protected class
when that unequal treatment has no reasonable relation to a
legitimate purpose.
(3) “Protected class” refers to a person’s race, color, sex,
gender identity, sexual orientation, religion, ethnicity or
national origin, disability, age, marital status, pregnancy or
parenthood, or status as a veteran.
(4) “Witness” includes any person who is contacted in
connection with a matter because that person may have
knowledge or information pertinent to the matter.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1863 effective June 23, 2015; by SCO 1964
effective October 15, 2021; and by SCO 1984 effective
October 5, 2022)
COMMENT
Lawyers are subject to discipline when they 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, as when they request or instruct an agent to
do so on the lawyer’s behalf. Paragraph (a), however, does not
prohibit a lawyer from advising a client concerning action the
client is legally entitled to take.
A lawyer may refuse to comply with an obligation
imposed by law upon a good faith belief that no valid
obligation exists. The provisions of Rule 1.2(d) concerning a
good faith challenge to the validity, scope, meaning, or
application of the law apply to challenges of legal regulation of
the practice of law.
Lawyers holding public office assume legal
responsibilities going beyond those of other citizens. A
lawyer’s abuse of public office can suggest an inability to
fulfill the professional role of lawyers. The same is true of
abuse of positions of private trust such as trustee, executor,
administrator, guardian, agent and officer, director, or manager
of a corporation or other organization.
This rule prohibits a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation that
reflects adversely on the lawyer’s fitness to practice law. This
rule does not, for example, prohibit a lawyer from advising and
supervising a lawful covert investigation into matters involving
criminal law, civil law, or constitutional rights, though the
lawyer may not participate directly in the covert investigation.
See Rule 9.1 for the definition of “lawful covert investigation.”
This rule additionally does not prohibit a lawyer from
engaging in lawful forms of deception if the conduct is among
their duties of employment as a non-lawyer by a government
agency, a law firm, or other entity.
Although assisting a client under Rule 1.2(f) may violate
federal drug laws, it is not a violation of Rule 8.4(b).
Rules 8.4(f) and (g) are intended to be a counterpart to
Rules 3.4 and 4.4(a), which declare that, in representing a
client, a lawyer shall not use means that lack any substantial
purpose other than to embarrass, delay, or burden a third
person.
Harassment and invidious discrimination are intolerable
because of their adverse effect on the proper administration of
justice. The administration of justice is impeded when a lawyer
engages in conduct that has no legitimate purpose other than to
intimidate or distract those who have independent
responsibilities and roles in the justice system.
For instance, our justice system depends on the
effectiveness of adversary counsel. One of the fundamental
aims of our court rules, including the Rules of Professional
Conduct, is to assure that adversaries have an equal
opportunity to prepare and present their case, so as to advance
the achievement of a just result. A lawyer’s harassment of or
PROFESSIONAL CONDUCT Rule 8.5
67
invidious discrimination against other participants in a matter
can impair their effectiveness, whether as advocates for
opposing views or as officers of the court. An attorney who
knowingly engages in such conduct perverts advocacy,
obstructs the proper administration of justice, and undermines
public respect for, and acceptance of, our adversary system and
the legal profession.
The persons who are protected from a lawyer’s
harassment or invidious discrimination under this rule include
seated jurors, that is, jurors who have gone through the
selection process and have been sworn to adjudicate a case.
Allegations of harassment or invidious discrimination against
prospective jurors should be handled by trial judges through
the procedures developed under Batson v. Kentucky, 476 U.S.
79 (1986).
A lawyer's harassing or invidiously discriminatory
conduct directed to persons working for the lawyer or the
lawyer's firm adversely affects the proper administration of
justice by undermining confidence in the legal profession.
Because agencies and courts routinely adjudicate disputes
arising out of allegations of harassment and invidious
discrimination in the workplace, the existence of such
misconduct should be determined, in the first instance, by an
agency or court before it may be the subject of professional
discipline.
The persons who are protected from a lawyer’s harassment or invidious discrimination under this rule include seated jurors, that is, jurors who have gone through the selection process and have been sworn to adjudicate a case. Allegations of harassment or invidious discrimination against prospective jurors
Rule 8.5. Disciplinary Authority; Choice of Law.
(a) Disciplinary Authority. A lawyer admitted to
practice in Alaska is subject to the disciplinary authority of this
state, regardless of where the lawyer’s conduct occurs. A
lawyer not admitted in Alaska is also subject to the disciplinary
authority of this state if the lawyer provides or offers to
provide any legal services in this state. A lawyer may be
subject to the disciplinary authority of both Alaska and another
jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary
authority of this jurisdiction, the rules of professional conduct
to be applied shall be as follows:
(1) for conduct in connection with a matter pending
before a tribunal, the rules of the jurisdiction in which the
tribunal sits, unless the rules of the tribunal provide otherwise;
and
(2) for any other conduct, the rules of the jurisdiction in
which the lawyer’s conduct occurred, or, if the predominant
effect of the conduct is in a different jurisdiction, the rules of
that jurisdiction shall be applied to the conduct. 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.
(SCO 1123 effective July 15, 1993; amended by SCO 1353,
effective October 15, 1999; and rescinded and repromulgated
by SCO 1680 effective April 15, 2009)
COMMENT
Disciplinary Authority
It is longstanding law that the conduct of a lawyer
admitted to practice in this jurisdiction is subject to the
disciplinary authority of this jurisdiction. Extension of the
disciplinary authority of this jurisdiction to other lawyers who
provide or offer to provide legal services in this jurisdiction is
for the protection of the citizens of this jurisdiction. Reciprocal
enforcement of a jurisdiction’s disciplinary findings and
sanctions will further advance the purposes of this Rule. See,
Rules 6 and 22, ABA Model Rules for Lawyer Disciplinary
Enforcement. A lawyer who is subject to the disciplinary
authority of this jurisdiction under Rule 8.5(a) appoints an
official to be designated by this Court to receive service of
process in this jurisdiction. The fact that the lawyer is subject
to the disciplinary authority of this jurisdiction may be a factor
in determining whether personal jurisdiction may be asserted
over the lawyer for civil matters.
Choice of Law
A lawyer may be potentially subject to more than one set
of rules of professional conduct which impose different
obligations. The lawyer may be licensed to practice in more
than one jurisdiction with differing rules, or may be admitted
to practice before a particular court with rules that differ from
those of the jurisdiction or jurisdictions in which the lawyer is
licensed to practice. Additionally, the lawyer’s conduct may
involve significant contacts with more than one jurisdiction.
Paragraph (b) seeks to resolve such potential conflicts. Its
premise is that minimizing conflicts between rules, as well as
uncertainty about which rules are applicable, is in the best
interest of both clients and the profession (as well as the bodies
having authority to regulate the profession). Accordingly, it
takes the approach of (i) providing that any particular conduct
of a lawyer shall be subject to only one set of rules of
professional conduct, (ii) making the determination of which
set of rules applies to particular conduct as straightforward as
possible, consistent with recognition of appropriate regulatory
interests of relevant jurisdictions, and (iii) providing protection
from discipline for lawyers who act reasonably in the face of
uncertainty.
Paragraph (b)(1) provides that as to a lawyer’s conduct
relating to a proceeding pending before a tribunal, the lawyer
shall be subject only to the rules of the jurisdiction in which
the tribunal sits unless the rules of the tribunal, including its
choice of law rule, provide otherwise. As to all other conduct,
including conduct in anticipation of a proceeding not yet
pending before a tribunal, paragraph (b)(2) provides that a
lawyer shall be subject to the rules of the jurisdiction in which
the lawyer’s conduct occurred, or, if the predominant effect of
the conduct is in another jurisdiction, the rules of that
jurisdiction shall be applied to the conduct. In the case of
conduct in anticipation of a proceeding that is likely to be
before a tribunal, the predominant effect of such conduct could
be where the conduct occurred, where the tribunal sits or in
another jurisdiction.
Rule 9.1 ALASKA COURT RULES
68
When a lawyer’s conduct involves significant contacts
with more than one jurisdiction, it may not be clear whether
the predominant effect of the lawyer’s conduct will occur in a
jurisdiction other than the one in which the conduct occurred.
So long as the lawyer’s conduct conforms to the rules of a
jurisdiction in which the lawyer reasonably believes the
predominant effect will occur, the lawyer shall not be subject
to discipline under this Rule.
If two admitting jurisdictions were to proceed against a
lawyer for the same conduct, they should, applying this rule,
identify the same governing ethics rules. They should take all
appropriate steps to see that they do apply the same rule to the
same conduct, and in all events should avoid proceeding
against a lawyer on the basis of two inconsistent rules.
The choice of law provision applies to lawyers engaged in
transnational practice, unless international law, treaties, or
other agreements between competent regulatory authorities in
the affected jurisdictions provide otherwise.
Rule 9.1. Definitions.
(a) “Belief” or “believes” denotes that the person
involved actually thought the fact in question to be true. A
person’s belief may be inferred from circumstances.
(b) “Client” denotes a person, a public officer or agency,
or a corporation, association, organization, or other entity,
either public or private, who receives professional legal
services from a lawyer.
(c) “Confirmed in writing”, when used in reference to
the informed consent of a person, denotes informed consent
that is given in writing by that 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.
(d) “Consult” or “consultation” denotes communication
of information reasonably sufficient to permit the client to
understand the significance of the matter in question.
(e) “Firm” or “law firm” denotes a lawyer or lawyers in
a law partnership, professional corporation, sole proprietor-
ship, or other association authorized to practice law. It also
denotes lawyers employed in a legal services organization or in
the legal department of a corporation or other organization.
See COMMENT, Rule 1.10.
(f) “Fraud” or “fraudulent” denotes conduct (including
acts of omission) performed with a purpose to deceive; it does
not include negligent misrepresentation or negligent failure to
apprise another of relevant information, or advising or
supervising persons who are using deception in a lawful covert
investigation.
(g) “Informed consent” denotes the agreement by a
person to a proposed course of conduct after the lawyer has
adequately explained the material risks of, and the 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) “Lawful covert investigation” means an investigation
in which the participants misrepresent or do not disclose their
true identity or motivation, but which otherwise conforms to
all relevant law, including the Rules of Professional Conduct
and all pertinent statutes, constitutional provisions, and
decisional law. For purposes of Rule 8.4(c), a lawyer may
advise and supervise the people engaged in a lawful covert
investigation, but the lawyer must not participate personally.
(j) “Matter” includes any judicial or other proceeding,
any application, or request for a ruling or other determination,
and any contract, claim, controversy, investigation, charge,
accusation, arrest, negotiation, or other particular transaction or
dealings involving a specific party or parties.
(k) “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.
(l) “Party” denotes any person who participates in, and
who has a legal interest in the outcome of, any matter for
which the lawyer has been engaged.
(m) “Person” denotes a government officer or agency,
corporation, company, partnership, firm, association,
organization, business trust, or society, as well as a natural
person.
(n) “Reasonable” or “reasonably” when used in relation
to conduct by a lawyer denotes the conduct of a reasonably
prudent and competent lawyer.
(o) “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.
(p) “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.
(q) “Screened” denotes the isolation of a person 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
person is obligated to protect under these Rules or other law.
(r) “Solicitation” is a targeted communication initiated
by the lawyer that is directed to a specific person and that
offers to provide, or can reasonably be understood as offering
to provide, legal services. A lawyer’s communication does not
constitute a solicitation if it is directed to the general public,
such as through a billboard, an Internet banner advertisement,
a website or a television commercial, or if it is in response to a
request for information or is automatically generated in
response to Internet searches.
PROFESSIONAL CONDUCT Rule 9.1
69
(s) “Substantial” when used in reference to degree or
extent denotes a material matter of clear and weighty
importance.
(t) “Substantially related” matters for purposes of the
rules governing a lawyer’s duties to former, current, and
prospective clients denotes matters:
(1) that involve the same transaction or the same
underlying legal dispute, or
(2) where there is a substantial risk that confidential
factual information obtained in the prior matter would
materially advance a client’s position in the subsequent matter.
In assessing the risk under subsection (2), a court or
disciplinary body may rely on the nature of the services that
the lawyer provided to the earlier client, the type of
information that would ordinarily be learned by a lawyer
providing such services, and whether this information would
predictably be used to the detriment of the earlier client by a
zealous, conflict-free advocate. However, matters will not be
deemed “substantially related” under paragraph (2) if the
confidential information imparted to the lawyer has since been
disclosed to the public or to other adverse parties.
(u) “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.
(v) “Writing” or “written” denotes a tangible or
electronic record of a communication or representation,
including handwriting, typewriting, printing, photostating,
photography, audio or video recording, and electronic
communications. A “signed” writing includes an electronic
sound, symbol, or process attached to or logically associated
with a writing, if it is executed or adopted by a person with the
intent to sign the writing.
(SCO 1123 effective July 15, 1993; rescinded and
repromulgated by SCO 1680 effective April 15, 2009;
amended by SCO 1905 effective October 15, 2017 by SCO
1964 effective October 15, 2021; and by SCO 1984 effective
October 5, 2022)
ALASKA COMMENT
Throughout the Rules of Professional Conduct, words in
the singular include the plural and words in the plural include
the singular.
Parties
In a lawsuit or proceeding before a tribunal, the parties
include plaintiffs and defendants, petitioners and respondents,
complainants, cross-complainants, cross-defendants, and all
other persons with equivalent roles in the lawsuit or
proceeding, no matter how they are denominated. In the
negotiation, drafting, or action to enforce or alter a contract or
other agreement, the parties include all individuals who are
bound, or will be bound, by the terms of the agreement. If the
matter for which the lawyer has been engaged concerns only
giving advice without interaction with third parties, then the
only parties are the lawyer’s clients.
The section entitled “Terminology” in the ABA Model
Rules has been replaced with Rule 9.1.
COMMENT
Confirmed in Writing
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 reliance on that consent so long as it is
confirmed in writing within a reasonable time thereafter.
Firm
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.
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.
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
Rule 9.1 ALASKA COURT RULES
70
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
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
experienced 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.
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 (v) and (c). 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 (v).
(SCO 1984 effective October 5, 2022)
Screened
This definition applies to situations where screening of a
personally disqualified lawyer is permitted to remove
imputation of a conflict of interest under Rules 1.11, 1.12 or
1.18.
The purpose of screening is to assure the affected parties
that confidential information known by the personally
disqualified lawyer remains protected. The personally disquali-
fied 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
information, including information in electronic form, 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 information, including information
in electronic form, relating to the matter and periodic
reminders of the screen to the screened lawyer and all other
firm personnel.
In order to be effective, screening measures must be
implemented as soon as practical after a lawyer or law firm
knows or reasonably should know that there is a need for
screening.
