The purposes of the State Bar of Georgia shall be:
\nMembership in the State Bar of Georgia shall consist of five classes: active, foreign law consultant, emeritus, disabled and inactive. The bylaws shall make provision for the registration of each active member and the location of his or her principal office for the practice of law, the registration of each foreign law consultant and the location of his or her principal office, and the registration of emeritus and inactive members and their mailing addresses.
\nUpon the Executive Committee’s granting of the member’s petition for disability status, the disabled member shall be treated as an inactive member of the State Bar of Georgia and shall not be privileged to practice law. A member holding disabled status shall not be required to pay dues or annual fees. A disabled member shall continue in such status until the member requests reinstatement by written application to the membership department of the State Bar of Georgia.
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No person shall practice law in this State unless such person is an active member of the State Bar of Georgia in good standing; except as provided below:
\n"},{"parentId":14,"version":1,"id":13,"name":"Rule 1-204. Good Standing","bodyText":"
No lawyer shall be deemed a member in good standing:
\n
The State Bar of Georgia shall, in its bylaws, establish the term of office and the method of election of the members of the Board of Governors representing judicial circuits and nonresident members. Such method of election shall ensure that:
\nThe maximum penalty for a violation of this Rule is disbarment.
\nComment
\n[1] 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 which is the property of clients or third persons should 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.
\n[2] Lawyers often receive funds from third parties from which the lawyer's fee will be paid. If there is risk that the client may divert the funds without paying the fee, the lawyer is not required to remit the portion from which the fee is to be paid. However, a lawyer may not hold funds to coerce a client into accepting the lawyer's contention. The disputed portion of the funds should be kept in trust and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration or interpleader. The undisputed portion of the funds shall be promptly distributed.
\n[3] Third parties, such as a client's creditors, may have just claims against funds or other property in a lawyer's custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party. 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 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.
\n[3A] In those cases where it is not possible to ascertain who is entitled to disputed funds or other property held by the lawyer, the lawyer may hold such disputed funds for a reasonable period of time while the interested parties attempt to resolve the dispute. If a resolution cannot be reached, it would be appropriate for a lawyer to interplead such disputed funds or property.
\n[4] A "clients' security fund" 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 should participate.
The maximum penalty for a violation of Rule 1.15 (II) (a) and Rule 1.15 (II) (b) is disbarment. The maximum penalty for a violation of Rule 1.15 (II) (c) is a public reprimand.
\nComment
\n[1] The personal money permitted to be kept in the lawyer's trust account by this Rule shall not be used for any purpose other than to cover the bank fees and if used for any other purpose the lawyer shall have violated this Rule. If the lawyer wishes to reduce the amount of personal money in the trust account, the change must be properly noted in the lawyer's financial records and the monies transferred to the lawyer's business account.
\n[2] Nothing in this Rule shall prohibit a lawyer from removing from the trust account fees which have been earned on a regular basis which coincides with the lawyer's billing cycles rather than removing the fees earned on an hour-by-hour basis.
\n[3] In determining whether funds of a client or other beneficiary can earn income in excess of costs, the lawyer may consider the following factors:
\n[4] The lawyer or law firm should review the IOLTA Account at reasonable intervals to determine whether changed circumstances require further action with respect to the funds of any client or third party.
\n
The maximum penalty for a violation of Rule 1.15 (II) (a) and Rule 1.15 (II) (b) is disbarment. The maximum penalty for a violation of Rule 1.15 (II) (c) is a public reprimand.
\nComment
\n[1] The personal money permitted to be kept in the lawyer's trust account by this Rule shall not be used for any purpose other than to cover the bank fees and if used for any other purpose the lawyer shall have violated this Rule. If the lawyer wishes to reduce the amount of personal money in the trust account, the change must be properly noted in the lawyer's financial records and the monies transferred to the lawyer's business account.
\n[2] Nothing in this Rule shall prohibit a lawyer from removing from the trust account fees which have been earned on a regular basis which coincides with the lawyer's billing cycles rather than removing the fees earned on an hour-by-hour basis.
\n[3] In determining whether funds of a client or other beneficiary can earn income in excess of costs, the lawyer may consider the following factors:
\n[4] The lawyer or law firm should review the IOLTA Account at reasonable intervals to determine whether changed circumstances require further action with respect to the funds of any client or third party.
\n
(a) Annual license fees for membership in the State Bar of Georgia shall be due and payable on July 1 of each year. Upon the failure of a member to pay the license fee by September 1, the member shall cease to be a member in good standing. When such license fees, including any late fees, costs, charges or penalties incurred by the State Bar of Georgia as a result of a cancelled or dishonored payment of any type or kind for the current and prior years have been paid in full, the member shall automatically be reinstated to the status of member in good standing, except as provided in subsection (b) of this Rule.
\n(b) In the event a member of the State Bar of Georgia is delinquent in the payment of any license fee, late fee, assessment, reinstatement fee, or cost, charge or penalty incurred by the State Bar of Georgia as a result of a cancelled or dishonored payment of any type or kind and of any nature for a period of one year, the member shall be automatically suspended, and shall not practice law in this state. The suspended member may thereafter lift such suspension only upon the successful completion of all of the following terms and conditions:
\n(1) payment of all outstanding dues, assessments, late fees, reinstatement fees, and any and all penalties due and owing before or accruing after the suspension of membership;
\n(2) provision to the membership section of the State Bar of Georgia of the following:
\n(i) a certificate from the Office of the General Counsel of the State Bar of Georgia that the suspended member is not presently subject to any disciplinary procedure;
\n(ii) a certificate from the Commission on Continuing Lawyer Competency that the suspended member is current on all requirements for continuing legal education;
\n(iii) a determination of fitness from the Board to Determine Fitness of Bar Applicants;
(3) payment to the State Bar of Georgia of a non-waivable reinstatement fee as follows:
\n(i) $150 for the first reinstatement paid within the first year of suspension, plus $150 for each year of suspension thereafter up to a total of five years;
\n(ii) $250 for the second reinstatement paid within the first year of suspension, plus $250 for each year of suspension thereafter up to a total of five years;
\n(iii) $500 for the third reinstatement paid within the first year of suspension, plus $500 for each year of suspension thereafter up to a total of five years; or
\n(iv) $750 for each subsequent reinstatement paid within the first year of suspension, plus $750 for each year of suspension thereafter up to a total of five years.
The yearly increase in the reinstatement fee shall become due and owing in its entirety upon the first day of each next fiscal year and shall not be prorated for any fraction of the fiscal year in which it is actually paid.
\nA member who has been suspended pursuant to this Rule may submit in writing to the Executive Committee a request for an extension of time to complete any of the requirements contained in subsection (b). The request must state with particularity the reasons and need for the extension. The Executive Committee, upon sufficient and reasonable cause, may grant such an extension.
\n(c) A member suspended under subsection (b) above for a total of five years in succession shall be immediately terminated as a member without further action on the part of the State Bar of Georgia. The terminated member shall not be entitled to a hearing as set out in subsection (d) below. The terminated member shall be required to apply for membership to the Office of Bar Admissions for readmission to the State Bar of Georgia. Upon completion of the requirements for readmission, the terminated member shall be required to pay the total reinstatement fee due under subsection (b) (3) above plus an additional $750 as a readmission fee to the State Bar of Georgia.
\n(d) Prior to suspending a member under subsection (b) above, the State Bar of Georgia shall send by certified mail a notice thereof to the last known address of the member as contained in the official membership records. It shall specify the years for which the license fee is delinquent and state that unless either the fee and all penalties related thereto are paid within 60 days or a hearing to establish reasonable cause is requested within 60 days, the membership shall be suspended.
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\nIf a hearing is requested, it shall be held at State Bar of Georgia Headquarters within 90 days of receipt of the request by the Executive Committee. Notice of time and place of the hearing shall be mailed at least ten days in advance. The party cited may be represented by counsel. Witnesses shall be sworn; and, if requested by the party cited, a complete electronic record or a transcript shall be made of all proceedings and testimony. The expense of the record shall be paid by the party requesting it, and a copy thereof shall be furnished to the Executive Committee. The presiding member or Special Master shall have the authority to rule on all motions, objections, and other matters presented in connection with the Georgia Rules of Civil Procedure, and the practice in the trial of civil cases. The party cited may not be required to testify over his or her objection.
\n
\nThe Executive Committee shall (1) make findings of fact and conclusions of law and shall determine whether the party cited was delinquent in violation of Rule 1-501; and (2) upon a finding of delinquency shall determine whether there was reasonable cause for the delinquency. Financial hardship short of adjudicated bankruptcy shall not constitute reasonable cause. A copy of the findings and the determination shall be sent to the party cited. If it is determined that no delinquency has occurred, the matter shall be dismissed. If it is determined that delinquency has occurred but that there was reasonable cause therefor, the matter shall be deferred for one year at which time the matter will be reconsidered. If it is determined that delinquency has occurred without reasonable cause therefor, the membership shall be suspended immediately upon such determination. An appropriate notice of suspension shall be sent to the clerks of all Georgia courts and shall be published in an official publication of the State Bar of Georgia. Alleged errors of law in the proceedings or findings of the Executive Committee or its delegate shall be reviewed by the Supreme Court of Georgia. The Executive Committee may delegate to a special master any or all of its responsibilities and authority with respect to suspending membership for license fee delinquency in which event the Special Master shall make a report to the Committee of its findings for its approval or disapproval.
\n
\nAfter a finding of delinquency, a copy of the finding shall be served upon the respondent attorney. The respondent attorney may file with the Court any written exceptions (supported by the written argument) said respondent may have to the findings of the Executive Committee. All such exceptions shall be filed with the Clerk of the Supreme Court of Georgia and served on the Executive Committee by service on the General Counsel within 20 days of the date that the findings were served on the respondent attorney. Upon the filing of exceptions by the respondent attorney, the Executive Committee shall within 20 days of said filing file a report of its findings and the complete record and transcript of evidence with the Clerk of the Supreme Court of Georgia. The Supreme Court of Georgia may grant extensions of time for filing in appropriate cases. Findings of fact by the Executive Committee shall be conclusive if supported by any evidence. The Supreme Court of Georgia may grant oral argument on any exception filed with it upon application for such argument by the respondent attorney or the Executive Committee. The Supreme Court of Georgia shall promptly consider the report of the Executive Committee, exceptions thereto, and the responses filed by any party to such exceptions, if any, and enter its judgment. A copy of the Supreme Court of Georgia's judgment shall be transmitted to the Executive Committee and to the respondent attorney by the Supreme Court of Georgia.
\n
\nWithin 30 days after a final judgment which suspends membership, the suspended member shall, under the supervision of the Supreme Court of Georgia, notify all clients of said suspended member's inability to represent them and of the necessity for promptly retaining new counsel, and shall take all actions necessary to protect the interests of said suspended member's clients. Should the suspended member fail to notify said clients or fail to protect their interests as herein required, the Supreme Court of Georgia, upon its motion, or upon the motion of the State Bar of Georgia, and after ten days notice to the suspended member and proof of failure to notify or protect said clients, may hold the suspended member in contempt and order that a member or members of the State Bar of Georgia take charge of the files and records of said suspended member and proceed to notify all clients and take such steps as seem indicated to protect their interests. Any member of the State Bar of Georgia appointed by the Supreme Court of Georgia to take charge of the files and records of the suspended member under these Rules shall not be permitted to disclose any information contained in the files and records in his or her care without the consent of the client to whom such file or record relates, except as clearly necessary to carry out the order of the Supreme Court of Georgia.
The maximum penalty for a violation of this rule is disbarment.
\n
\nComment
\n
\n[1] Each financial institution wishing to be approved as a depository of client trust funds must file an overdraft notification agreement with the Office of the General Counsel of the State Bar of Georgia. The State Bar of Georgia will publish a list of approved institutions at least annually.
\n
\n[2] The overdraft agreement requires that all overdrafts be reported to the Office of the General Counsel of the State Bar of Georgia whether or not the instrument is honored. It is improper for a lawyer to accept "overdraft privileges" or any other arrangement for a personal loan on a client trust account, particularly in exchange for the institution's promise to delay or not to report an overdraft. The institution must notify the Office of the General Counsel of all overdrafts even where the institution is certain that its own error caused the overdraft or that the matter could have been resolved between the institution and the lawyer within a reasonable period of time.
\n
\n[3] The overdraft notification provision is not intended to result in the discipline of every lawyer who overdraws a trust account. The lawyer or institution may explain occasional errors. The provision merely intends that the Office of the General Counsel receive an early warning of improprieties so that corrective action, including audits for cause, may be taken.
\n
\nWaiver
\n
\n[4] A lawyer may seek to have the provisions of this rule waived if the lawyer or law firm has its principal office in a county where no bank, credit union, or savings and loan association will agree or has agreed to comply with the provisions of this rule. Other grounds for requesting a waiver may include significant financial or business harm to the lawyer or law firm, such as where the unapproved bank is a client of the lawyer or law firm or where the lawyer serves on the board of the unapproved bank.
\n
\n[5] The request for a waiver should be in writing, sent to the Georgia Bar Foundation, and should include sufficient information to establish good cause for the requested waiver.
\n
\n[6] The Georgia Bar Foundation may request additional information from the lawyer or law firm if necessary to determine good cause.
Audits
\n[7] Every lawyer's financial records and trust account records are required records and therefore are properly subject to audit for cause. The audit provisions are intended to uncover errors and omissions before the public is harmed, to deter those lawyers who may be tempted to misuse client's funds and to educate and instruct lawyers as to proper trust accounting methods. Although the auditors will be employed by the Office of the General Counsel of the State Bar of Georgia, it is intended that disciplinary proceedings will be brought only when the auditors have reasonable cause to believe discrepancies or irregularities exist. Otherwise, the auditors should only educate the lawyer and the lawyer's staff as to proper trust accounting methods.
\n[8] An audit for cause may be conducted at any time and without advance notice if the Office of the General Counsel receives sufficient evidence that a lawyer poses a threat of harm to clients or the public. The Office of the General Counsel must have the written approval of the Chairman of the State Disciplinary Board and the President-elect of the State Bar of Georgia to conduct an audit for cause.
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The maximum penalty for a violation of this Rule is a public reprimand.
\n
\nComment
\n
\n[1] A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. But see Rule 1.2(c): Scope of Representation.
\n
\nMandatory Withdrawal
\n
\n[2] 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 Georgia 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.
\n
\n[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2: Accepting Appointments. Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may wish 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.
\n
\nDischarge
\n
\n[4] A client has a right to discharge a 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.
\n
\n[5] Whether a client can discharge appointed counsel may depend on applicable law. To the extent possible, the lawyer should give the client an explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring the client to be self-represented.
\n
\n[6] If the client is mentally incompetent, 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, in an extreme case, may initiate proceedings for a conservatorship or similar protection of the client. See Rule 1.14: Client under a Disability.
\n
\nOptional Withdrawal
\n
\n[7] 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 lawyer also may withdraw where the client insists on a repugnant or imprudent objective. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.
\n
\n[8] 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.
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\nAssisting the Client upon Withdrawal
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\n[9] 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.
\n
\n[10] Whether or not a lawyer for an organization may under certain unusual circumstances have a legal obligation to the organization after withdrawing or being discharged by the organization's highest authority is beyond the scope of these Rules.
A lawyer or a law firm may sell or purchase a law practice, including good will, if the following conditions are satisfied:
\nThe maximum penalty for a violation of this rule is a public reprimand.
\n
\nComment
\n
\n[1] 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 another lawyer or firm takes 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: Professional Independence of a Lawyer and 5.6: Restrictions on Right to Practice.
\n
\nTermination of Practice by the Seller
\n
\n[2] The requirement that all of the private practice be sold is satisfied if the seller in good faith makes the entire practice available for sale to the purchaser. The fact that a number of the seller's clients decide not to be represented by the purchaser but take their matters elsewhere, therefore, does not result in a violation. Neither does a return to private practice as a result of an unanticipated change in circumstances 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.
\n
\n[3] Reserved.
\n
\n[4] Reserved.
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\nSingle Purchaser
\n
\n[5] The rule requires a single purchaser. The prohibition against piecemeal sale of a practice 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 purchaser is required to undertake all client matters in the practice, subject to client consent. If, however, the purchaser is unable to undertake all client matters because of a conflict of interest in a specific matter respecting which the purchaser is not permitted by Rule 1.7: Conflict of Interest or another rule to represent the client, the requirement that there be a single purchaser is nevertheless satisfied.
\n
\nClient Confidences, Consent and Notice
\n
\n[6] Negotiations between seller and prospective purchaser prior to disclosure of information relating to a specific representation of an identifiable client no more violate the confidentiality provisions of Rule 1.6: Confidentiality of Information than do preliminary discussions concerning the possible association of another lawyer or mergers between firms, with respect to which client consent is not required. Providing the purchaser access to client-specific information relating to the representation and to the 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 any proposed change in the terms of future representation, 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.
\n
\n[7] 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 requires that the petition for a court order be considered in camera.
\n
\n[8] All the 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.
\n
\nFee Arrangements Between Client and Purchaser
\n
\n[9] The sale may not be financed by increases in fees charged the clients of the practice. Existing agreements between the seller and the client as to fees and the scope of the work must be honored by the purchaser, unless the client consents. The purchaser may, however, advise the client that the purchaser will not undertake the representation unless the client consents to pay the higher fees the purchaser usually charges. To prevent client financing of the sale, the higher fee the purchaser may charge must not exceed the fees charged by the purchaser for substantially similar services rendered prior to the initiation of the purchase negotiations.
\n
\n[10] The purchaser may not intentionally fragment the practice which is the subject of the sale by charging significantly different fees in substantially similar matters. Doing so would make it possible for the purchaser to avoid the obligation to take over the entire practice by charging arbitrarily higher fees for less lucrative matters, thereby increasing the likelihood that those clients would not consent to the new representation.
\n
\nOther Applicable Ethical Standards
\n
\n[11] Lawyers participating in the sale of a law practice 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: Competence); the obligation to avoid disqualifying conflicts, and to secure client consent after consultation for those conflicts which can be agreed to (see Rule 1.7: Conflict of Interest); and the obligation to protect information relating to the representation (see Rules 1.6 and 1.9).
\n
\n[12] 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: Declining or Terminating Representation).
\n
\nApplicability of the Rule
\n
\n[13] This rule applies to the sale of a law practice by representatives 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.
\n
\n[14] Admission to or retirement from a law partnership or professional association, retirement plans and similar arrangements, and a sale of tangible assets of a law practice, do not constitute a sale or purchase governed by this rule.
\n
\n[15] This rule does not apply to the transfers of legal representation between lawyers when such transfers are unrelated to the sale of a practice.
\nThe maximum penalty for a violation of this Rule is disbarment.
\n
\nComment
\n
\nAllocation of Authority between Client and Lawyer
\n
\n[1] 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 settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) 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(a)(2) and may take such action as is impliedly authorized to carry out the representation.
\n
\n[2] 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).
\n
\n[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 circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time.
\n
\n[4] In a case in which the client appears to be suffering from diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule 1.14.
\n
\nIndependence from Client's Views or Activities
\n
\n[5] Legal representation should not be denied to people who are unable to afford legal services, or 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.
\n
\nAgreements Limiting Scope of Representation
\n
\n[6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.
\n
\n[7] Although this Rule affords the lawyer and the client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, 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.
\n
\n[8] 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.
\n
\nCriminal, Fraudulent and Prohibited Transactions
\n
\n[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. 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.
\n
\n[10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.
\n
\n[11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.
\n
\n[12] Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent voidance of tax liability. 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.
\n
\n[13] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions, the lawyer must consult with the client regarding the limitations on the lawyer's conduct. See Rule 1.4(a)(5).
Rule 4-214. This rule is reserved.
"},{"parentId":54,"version":2,"id":280,"name":"RULE 1.4 COMMUNICATION","bodyText":"The maximum penalty for a violation of this rule is a public reprimand.
\n
\nComment
\n
\n[1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.
\n
\nCommunicating with Client
\n
\n[2] If these rules require that a particular decision about the representation be made by the client, paragraph (a) (1) requires that the lawyer promptly consult with and secure the client's informed consent prior to taking 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).
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\n[3] Paragraph (a) (2) 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) (3) 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.
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\n[4] 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) (4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged. The timeliness of a lawyer's communication must be judged by all the controlling factors. "Prompt" communication with the client does not equate to "instant" communication with the client and is sufficient if reasonable under the relevant circumstances.
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\nExplaining Matters
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\n[5] 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, where 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 affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0 (h).
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\n[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished 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 communications 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.
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\nWithholding Information
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\n[7] 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.
The maximum penalty for a violation of this Rule is a public reprimand.
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\n
Comment
\n
\nReasonableness of Fee and Expenses
\n
\n[1] 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.
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\n[1A] A fee can also be unreasonable if it is illegal. Examples of illegal fees are those taken without required court approval, those that exceed the amount allowed by court order or statute, or those where acceptance of the fee would be unlawful, e.g., accepting controlled substances or sexual favors as payment.
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\nBasis or Rate of Fee
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\n[2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a new client-lawyer relationship, however, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding. Furnishing the client with a simple memorandum or a copy of the lawyer's customary fee schedule is sufficient if the basis or rate of the fee is set forth.
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\n[3] 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.
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\nTerms of Payment
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\n[4] 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(j). 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.
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\n[5] An agreement may not be made, the terms of which 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 wasteful procedures.
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\nProhibited Contingent Fees
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\n[6] 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. See Formal Advisory Opinions 36 and 47.
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\nDivision of Fee
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\n[7] 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. Joint responsibility for the representation entails financial and ethical responsibility for the representation.
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\n[8] 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.
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\nDisputes over Fees
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\n[9] If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the Bar, 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.
The maximum penalty for a violation of this rule is disbarment.
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\nComment
\n
\n[1] The lawyer is part of a judicial system charged with upholding the law. One of the lawyer's functions is to advise clients so that they avoid any violation of the law in the proper exercise of their rights.
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\n[2] The observance of the ethical obligation of a lawyer to hold inviolate confidential information of the client not only facilitates the full development of facts essential to proper representation of the client but also encourages people to seek early legal assistance.
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\n[3] Almost without exception, clients come to lawyers in order to determine what their rights are and what is, in the maze of laws and regulations, deemed to be legal and correct. The common law recognizes that the client's confidences must be protected from disclosure. Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld.
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\n[4] A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.
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\n[4A] Information gained in the professional relationship includes information gained from a person (prospective client) who discusses the possibility of forming a client-lawyer relationship with respect to a matter. Even when no client-lawyer relationship ensues, the restrictions and exceptions of these rules as to use or revelation of the information apply, e.g. Rules 1.9 and 1.10.
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\n[5] The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege (which includes the work product doctrine) in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies 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 applies in situations other than those where evidence is sought from the lawyer through compulsion of law. Rule 1.6 applies not merely to matters communicated in confidence by the client but also to all information gained in the professional relationship, whatever its source. A lawyer may not disclose such information except as authorized or required by the Georgia Rules of Professional Conduct or other law. See also Scope. The requirement of maintaining confidentiality of information gained in the professional relationship applies to government lawyers who may disagree with the client's policy goals.
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\nAuthorized Disclosure
\n
\n[6] A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion.
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\n[7] Lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers.
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\n[7A] 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) (1) (iv) permits such disclosure because of the importance of a lawyer's compliance with the Georgia Rules of Professional Conduct.
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\nDisclosure Adverse to Client
\n
\n[8] The confidentiality rule is subject to limited exceptions. In becoming privy to information about a client, a lawyer may foresee that the client intends serious harm to another person. The public is better protected if full and open communication by the client is encouraged than if it is inhibited.
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\n[9] Several situations must be distinguished. First, the lawyer may not knowingly assist a client in conduct that is criminal or fraudulent. See Rule 1.2 (d). Similarly, a lawyer has a duty under Rule 3.3 (a) (4) not to use false evidence.
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\n[10] Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.2 (d), because to "knowingly assist" criminal or fraudulent conduct requires knowing that the conduct is of that character.
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\n[11] Third, the lawyer may learn that a client intends prospective conduct that is criminal and likely to result in death or substantial bodily harm. As stated in paragraph (b) (1), the lawyer has professional discretion to reveal information in order to prevent such consequences. The lawyer may make a disclosure in order to prevent death or serious bodily injury which the lawyer reasonably believes will occur. It is very difficult for a lawyer to "know" when such a heinous purpose will actually be carried out, for the client may have a change of mind.
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\n[12] The lawyer's exercise of discretion requires consideration of 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. Where practical, the lawyer should seek to persuade the client to take suitable action. In any case, a disclosure adverse to the client's interest should be no greater than the lawyer reasonably believes necessary to the purpose. A lawyer's decision not to take preventive action permitted by paragraph (b) (1) does not violate this rule.
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\nWithdrawal
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\n[13] 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).
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\n[14] After withdrawal the lawyer is required to refrain from making disclosure of the client's confidences, except as otherwise provided in 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.
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\n[15] Where the client is an organization, the lawyer may be in doubt whether contemplated conduct will actually be 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).
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\nDispute Concerning a Lawyer's Conduct
\n
\n[16] 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. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b) (1) (iii) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend, of course, applies where a proceeding has been commenced. Where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. In any event, disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which limits 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.
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\n[17] If the lawyer is charged with wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge. Such a charge can arise in a civil, criminal or professional disciplinary 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. A lawyer entitled to a fee is permitted by paragraph (b) (1) (iii) 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. As stated above, the lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.
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\nDisclosures Otherwise Required or Authorized
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\n[18] The attorney-client privilege is differently defined 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.
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\n[19] The Georgia Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See Rules 2.2, 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 Rule 1.6 is a matter of interpretation beyond the scope of these rules, but a presumption should exist against such a supersession.
The maximum penalty for a violation of this Rule is disbarment.
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\nComment
\n
\nLoyalty to a Client
\n
\n[1] Loyalty and independent judgment are essential elements in the lawyer's relationship to a client. If an impermissible conflict of interest exists before representation is undertaken the representation should be declined. The 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 parties and issues involved and to determine whether there are actual or potential conflicts of interest.
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\n[2] Loyalty to a client is impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other competing responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (a) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict 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. Consideration should be given to whether the client wishes to accommodate the other interest involved.
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\n[3] If an impermissible conflict arises after representation has been undertaken, the lawyer should withdraw from the representation. See Rule 1.16. Where more than one client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by Rule 1.9. As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment 4 to Rule 1.3 and Scope.
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\n[4] As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client's informed consent. Paragraphs (b) and (c) express that general rule. Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not require informed consent of the respective clients.
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\nConsultation and Informed Consent
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\n[5] A client may give informed consent to representation notwithstanding a conflict. However, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's informed consent. When more than one client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the disclosure necessary to obtain informed consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to give informed consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to give informed consent. If informed consent is withdrawn, the lawyer should consult Rule 1.9 and Rule 1.16.
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\n[5A] 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 1.0(b). See also Rule 1.0(s) (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 1.0(b). 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.
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\nLawyer's Interests
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\n[6] The lawyer's personal or economic interests should not be permitted to have an adverse effect on representation of a client. See Rules 1.1 and 1.5. If the propriety 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 objective advice. 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 interest.
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\nConflicts in Litigation
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\n[7] Paragraph (c)(2) prohibits representation of opposing parties in the same or a similar proceeding including simultaneous representation of parties whose interests may conflict, such as co-plaintiffs or co-defendants. An impermissible 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 is proper if the risk of adverse effect is minimal, the requirements of paragraph (b) are met, and consent is not prohibited by paragraph (c).
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\n[8] Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as advocate against a client. For example, a lawyer representing an enterprise with diverse operations may accept employment as an advocate against the enterprise in an unrelated matter if doing so will not adversely affect the lawyer's relationship with the enterprise or conduct of the suit and if both clients give informed consent as required by paragraph (b). By the same token, government lawyers in some circumstances may represent government employees in proceedings in which a government entity is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation.
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\n[9] A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases while they are pending in different trial courts, but it may be improper to do so should one or more of the cases reach the appellate court.
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\nInterest of Person Paying for a Lawyer's Service
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\n[10] A lawyer may be paid from a source other than the client, if the client is informed of that fact and gives informed consent and the arrangement does not compromise the lawyer's duty of loyalty to the client. See Rule 1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement, and the insurer is required to provide special counsel for the insured, the arrangement should assure the special counsel's professional independence. So also, when a corporation and its directors or employees are involved in a controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of the directors or employees, if the clients give informed consent and the arrangement ensures the lawyer's professional independence.
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\nNon-litigation Conflicts
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\n[11] Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for material and adverse effect include the duration and extent of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise.
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\n[12] In a negotiation common representation is permissible where the clients are generally aligned in interest even though there is some difference of interest among them.
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\n[13] Conflict questions may also 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 arise. 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. The lawyer should make clear the relationship to the parties involved.
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\n[14] 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.
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\nConflict Charged by an Opposing Party
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\n[15] Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call into question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment. See Scope.
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The maximum penalty for a violation of Rule 1.8(b) is disbarment. The maximum penalty for a violation of Rule 1.8(a) and 1.8(c)-(j) is a public reprimand.
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\nComment
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\nTransactions Between Client and Lawyer
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\n[1A] As a general principle, all transactions between client and lawyer should be fair and reasonable to the client. The client should be fully informed of the true nature of the lawyer's interest or lack of interest in all aspects of the transaction. In such transactions a review by independent counsel on behalf of the client is often advisable. Furthermore, a lawyer may not exploit information relating to the representation to the client's disadvantage. For example, a lawyer who has learned that the client is investing in specific real estate may not, without the client's informed consent, seek to acquire nearby property where doing so would adversely affect the client's plan for investment. Paragraph (a) does not, however, 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.
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\nUse of Information to the Disadvantage of the Client
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\n[1B] It is a general rule that an attorney will not be permitted to make use of knowledge, or information, acquired by the attorney through the professional relationship with the client, or in the conduct of the client's business, to the disadvantage of the client. Paragraph (b) follows this general rule and provides that the client may waive this prohibition. However, if the waiver is conditional, the duty is on the attorney to comply with the condition.
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\nGifts from Clients
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\n[2] 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 effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, however, the client should have the objective advice that another lawyer can provide. Paragraph (c) recognizes an exception where the client is a relative of the donee or the gift is not substantial.
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\nLiterary Rights
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\n[3] An agreement by which a lawyer acquires literary or media rights concerning the subject of the representation creates a conflict between the interest of the client and the personal interest 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 paragraph (j) of this Rule.
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\nFinancial Assistance to Clients
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\n[4] Paragraph (e) eliminates the former requirement that the client remain ultimately liable for financial assistance provided by the lawyer. It further limits permitted assistance to court costs and expenses directly related to litigation. Accordingly, permitted expenses would include expenses of investigation, medical diagnostic work connected with the matter under litigation and treatment necessary for the diagnosis, and the costs of obtaining and presenting evidence. Permitted expenses would not include living expenses or medical expenses other than those listed above.
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\nPayment for a Lawyer's Services from One Other Than The Client
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\n[5] 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).
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\nSettlement of Aggregated Claims
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\n[6] Paragraph (g) requires informed consent. This requirement is not met by a blanket consent prior to settlement that the majority decision will rule.
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\nAgreements to Limit Liability
\n
\n[7] A lawyer may not condition an agreement to withdraw or the return of a client's documents on the client's release of claims. However, this paragraph is not intended to apply to customary qualifications and limitations in opinions and memoranda.
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\n[8] A lawyer should not seek prospectively, by contract or other means, to limit the lawyer's individual liability to a client for the lawyer's malpractice. A lawyer who handles the affairs of a client properly has no need to attempt to limit liability for the lawyer's professional activities and one who does not handle the affairs of clients properly should not be permitted to do so. A lawyer may, however, practice law as a partner, member, or shareholder of a limited liability partnership, professional association, limited liability company, or professional corporation.
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\nFamily Relationships Between Lawyers
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\n[9] Paragraph (i) applies to related lawyers who are in different firms. Related lawyers in the same firm are governed by Rules 1.7, 1.9, and 1.10.
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\nAcquisition of Interest in Litigation
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\n[10] Paragraph (j) states the traditional general rule that lawyers are prohibited from acquiring a proprietary interest in litigation. This general rule, which has its basis in the common law prohibition of champerty and maintenance, is subject to specific exceptions developed in decisional law and continued in these Rules, such as the exception for reasonable contingent fees set forth in Rule 1.5 and the exception for lawyer's fees and for certain advances of costs of litigation set forth in paragraph (e).
The maximum penalty for a violation of this Rule is disbarment.
\n
\nComment
\n
\n[1] 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 [9]. Current and former government lawyers must comply with this Rule to the extent required by Rule 1.11.
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\n[2] 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 considerations 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.
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\n[3] Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For 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. 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.
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\nLawyers Moving Between Firms
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\n[4] 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 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.
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\n[5] 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 information relating to 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.
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\n[6] 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. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.
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\n[7] 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).
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\n[8] 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.
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\n[9] 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 1.0(b) and (h). With regard to disqualification of a firm with which a lawyer is or was formerly associated, see Rule 1.10.
The powers to investigate and discipline members of the State Bar of Georgia and those authorized to practice law in Georgia for violations of the Georgia Rules of Professional Conduct set forth in Bar Rule 4-102 are hereby vested in a State Disciplinary Board and a Consumer Assistance Program. The State Disciplinary Board shall consist of two panels. The first panel shall be the Investigative Panel of the State Disciplinary Board (Investigative Panel). The second panel shall be the Review Panel of the State Disciplinary Board (Review Panel). The Consumer Assistance Program shall operate as described in Part XII of these Rules.
\nThe maximum penalty for a violation of this Rule is a public reprimand.
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\nComment
\n
\nDefinition
\n
\n[1] An evaluation may be performed at the client's direction but 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 entity; 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.
\n
\n[2] Lawyers for the government may be called upon to give a formal opinion on the legality of contemplated government entity action. In making such an evaluation, the government lawyer acts at the behest of the government as the client but for the purpose of establishing the limits of the agency's authorized activity. Such an opinion is to be distinguished from confidential legal advice given agency officials. The critical question is whether the opinion is to be made public.
\n
\n[3] 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 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 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.
\n
\nDuty to Third Person
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\n[4] 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.
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\nAccess to and Disclosure of Information
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\n[5] 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 which 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.
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\nFinancial Auditors' Requests for Information
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\n[6] 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.
The maximum penalty for a violation of this Rule is a public reprimand.
\n
\nComment
\n
\n[1] 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 decision maker depends on the particular process that is either selected by the parties or mandated by a court.
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\n[2] 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 Association and the American Arbitration Association or the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution.
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\n[3] Unlike non-lawyers 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.
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\n[4] 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.
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\n[5] 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 1.0(r)), 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.
In the representation of a client, a lawyer shall not:
\nThe maximum penalty for a violation of this Rule is a public reprimand.
\n
\nComment
\n
\n[1] 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.
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\n[2] 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. 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 client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person, or, 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.
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\n[3] It is not ethically improper for a lawyer to file a lawsuit before complete factual support for the claim has been established provided that the lawyer determines that a reasonable lawyer would conclude that there is a reasonable possibility that facts supporting the cause of action can be established after the filing of the claim; and provided further that the lawyer is not required by rules of procedure. or otherwise to represent that the cause of action has an adequate factual basis. If after filing it is discovered that the lawsuit has no merit, the lawyer will dismiss the lawsuit or in the alternative withdraw.
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\n[4] The decision of a court that a claim is not meritorious is not necessarily conclusive of a violation of this Rule.
The maximum penalty for a violation of this Rule is disbarment.
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\nComment
\n
\n[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(r) 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)(4) 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.
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\n[2] 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 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.
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\nRepresentations by a Lawyer
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\n[3] 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. See also the Comment to Rule 8.4(b).
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\nLegal Argument
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\n[4] 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)(3), 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.
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\nOffering Evidence
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\n[5] Paragraph (c) allows 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.
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\n[6] 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 may 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 from the witness the testimony that the lawyer knows is false.
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\n[7] The duties stated in paragraphs (a), (b) and (c) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required 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 such requirements. See also Comment [9].
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\n[8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A 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 1.0(i). 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.
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\n[9] Although paragraph (a)(4) only 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 [7].
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\nRemedial Measures
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\n[10] 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.
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\n[11] 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.
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\nPreserving Integrity of Adjudicative Process
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\n[12] 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.
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\nDuration of Obligation
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\n[13] 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.
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\nEx Parte Proceedings
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\n[14] 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.
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\nWithdrawal
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\n[15] 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 information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6.
A lawyer shall not:
\nThe maximum penalty for a violation of this Rule is disbarment.
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\nComment
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\n[1] The procedure of the adversary system contemplates that the evidence in a case is to be marshaled 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.
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\n[2] 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 commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including computerized information.
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\n[3] Reserved.
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\n[4] 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.
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\n[5] As to paragraph (g), the 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 the opposing party or counsel. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence.
A lawyer shall not, without regard to whether the lawyer represents a client in the matter:
\nThe maximum penalty for a violation of paragraph (a) or paragraph (c) of this Rule is disbarment. The maximum penalty for a violation of paragraph (b) or paragraph (d) of this Rule is a public reprimand.
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\nComment
\n
\n[1] Many forms of improper influence upon the tribunal are proscribed by criminal law. All of those are specified in the Georgia Code of Judicial Conduct with which an advocate should be familiar. Attention is also directed to Rule 8.4. Misconduct., which governs other instances of improper conduct by a lawyer/candidate.
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\n[2] If we are to maintain the integrity of the judicial process, it is imperative that an advocate's function be limited to the presentation of evidence and argument, to allow a cause to be decided according to law. The exertion of improper influence is detrimental to that process. Regardless of an advocate's innocent intention, actions which give the appearance of tampering with judicial impartiality are to be avoided. The activity proscribed by this Rule should be observed by the advocate in such a careful manner that there be no appearance of impropriety.
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\n[3A] The Rule with respect to ex parte communications limits direct communications except as may be permitted by law. Thus, court rules or case law must be referred to in order to determine whether certain ex parte communications are legitimate. Ex parte communications may be permitted by statutory authorization.
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\n[3B] A lawyer who obtains a judge's signature on a decree in the absence of the opposing lawyer where certain aspects of the decree are still in dispute, may have violated Rule 3.5. Impartiality and Decorum of the Tribunal., regardless of the lawyer's good intentions or good faith.
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\n[4] A lawyer may communicate as to the merits of the cause with a judge in the course of official proceedings in the case, in writing if the lawyer simultaneously delivers a copy of the writing to opposing counsel or to the adverse party if the party is not represented by a lawyer, or orally upon adequate notice to opposing counsel or to the adverse party if the party is not represented by a lawyer.
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\n[5] If the lawyer knowingly instigates or causes another to instigate a communication proscribed by Rule 3.5. Impartiality and Decorum of the Tribunal., a violation may occur.
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\n[6] Direct or indirect communication with a juror during the trial is clearly prohibited. A lawyer may not avoid the proscription of Rule 3.5. Impartiality and Decorum of the Tribunal., by using agents to communicate improperly with jurors. A lawyer may be held responsible if the lawyer was aware of the client's desire to establish contact with jurors and assisted the client in doing so.
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\n[7] A lawyer may on occasion want to communicate with a 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 period.
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\n[8] While a lawyer may stand firm against abuse by a judge, the lawyer's actions should avoid reciprocation. Fairness and impartiality of the trial process is strengthened by the lawyer's protection of the record for subsequent review and this preserves the professional integrity of the legal profession by patient firmness.
The maximum penalty for a violation of this Rule is a public reprimand.
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\nComment
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\n[1] 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.
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\n[2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation.
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\n[3] 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.
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\n[4] Reserved.
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\n[5A] There are, on the other hand, certain subjects which 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:
[5B] In addition, there are certain subjects which are more likely than not to have no material prejudicial effect on a proceeding. Thus, a lawyer may usually state:
\n[6] 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.
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\n[7] 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.
The maximum penalty for a violation of this Rule is a public reprimand.
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\nComment
\n
\n[1] Combining the roles of advocate and witness can prejudice the opposing party and can involve a conflict of interest between the lawyer and client.
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\n[2] 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.
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\n[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.
\n
\n[4] Apart from these two exceptions, paragraph (a)(3) recognizes that a balancing is required between the interests of the client and those of the opposing party. Whether 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 principle of imputed disqualification stated in Rule 1.10: Imputed Disqualification has no application to this aspect of the problem.
\n
\n[5] Whether the combination of roles involves an improper conflict of interest with respect to the client is determined by Rule 1.7: Conflict of Interest: General Rule or Rule 1.9: Conflict of Interest: Former Client. For example, if there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer's firm, the representation is improper. 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. See Comment to Rule 1.7: Conflict of Interest. If a lawyer who is a member of a firm may not act as both advocate and witness by reason of conflict of interest, Rule 1.10: Imputed Disqualification disqualifies the firm also.
The prosecutor in a criminal case shall:
\nThe maximum penalty for a violation of this Rule is a public reprimand.
\n
\nComment
\n
\n[1] 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 and that guilt is decided upon the basis of sufficient evidence. Precisely how far the prosecutor is required to go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. 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: Misconduct.
\n
\n[2] Reserved.
\n
\n[3] Reserved.
\n
\n[4] Paragraph (f) 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.
\n
\n[5] Paragraph (g) supplements Rule 3.6: Trial Publicity, 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 condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences 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 opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c): Trial Publicity.
The maximum penalty for a violation of this Rule is disbarment.
\nComment
\nDefinition of "Firm"
\n[1] For purposes of these Rules, the term "firm" includes lawyers in a private firm, and lawyers in the legal department of a corporation or other organization, or in a legal services organization. Whether two or more lawyers constitute a firm within this definition 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 suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the 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 the other.
\n[2] With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. However, there can be uncertainty 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.
\n[3] Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.
\n[4] Where a lawyer has joined a private firm after having represented the government, the situation is governed by Rule 1.11(a) and (b): Successive Government and Private Employment; where a lawyer represents the government after having served private clients, the situation is governed by Rule 1.11(c)(1): Successive Government and Private Employment. The individual lawyer involved is bound by the Rules generally, including Rules 1.6: Confidentiality of Information, 1.7: Conflict of Interest: General Rule and 1.9: Conflict of Interest: Former Client.
\n[5] Different provisions are thus made for movement of a lawyer from one private firm to another and for movement of a lawyer between a private firm and the government. The government is entitled to protection of its client confidences and, therefore, to the protections provided in Rules 1.6: Confidentiality of Information, 1.9: Conflict of Interest: Former Client, and 1.11: Successive Government and Private Employment. However, if the more extensive disqualification in Rule 1.10: Imputed Disqualification were applied to former government lawyers, the potential effect on the government would be unduly burdensome. The government deals with all private citizens and organizations and, thus, has a much wider circle of adverse legal interests than does any private law firm. In these circumstances, the government's recruitment of lawyers would be seriously impaired if Rule 1.10: Imputed Disqualification were applied to the government. On balance, therefore, the government is better served in the long run by the protections stated in Rule 1.11: Successive Government and Private Employment.
\nPrinciples of Imputed Disqualification
\n[6] 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): Conflict of Interest: Former Client, and 1.10(b): Imputed Disqualification: General Rule.
\n[7] Rule 1.10(b): Imputed Disqualification 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: Conflict of Interest. 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: Confidentiality of Information and 1.9(c): Conflict of Interest: Former Client.
Contents
\nPreamble, Scope and Terminology
\n
\nRules: Client-Lawyer Relationship
\n
\n1.0 Terminology
\n1.1 Competence
\n1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
\n1.3 Diligence
\n1.4 Communication
\n1.5 Fees
\n1.6 Confidentiality of Information
\n1.7 Conflict of Interest: General Rule
\n1.8 Conflict of Interest: Prohibited Transactions
\n1.9 Conflict of Interest: Former Client
\n1.10 Imputed Disqualification: General Rule
\n1.11 Successive Government and Private Employment
\n1.12 Former Judge or Arbitrator
\n1.13 Organization as Client
\n1.14 Client With Diminished Capacity
\n1.15(I) Safekeeping Property - General
\n1.15(II) Safekeeping Property - Trust Account and IOLTA
\n1.15(III) Record Keeping; Trust Account Overdraft Notification; Examination of Records
\n1.16 Declining or Terminating Representation
\n1.17 Sale of Law Practice
\n
\n Counselor
\n
\n2.1 Advisor
\n2.2 (This Rule is Reserved)
\n2.3 Evaluation for Use by Third Persons
\n2.4 Lawyer Serving as a Third Party Neutral
\n
\n Advocate
\n
\n3.1 Meritorious Claims and Contentions
\n3.2 Expediting Litigation
\n3.3 Candor toward the Tribunal
\n3.4 Fairness to Opposing Party and Counsel
\n3.5 Impartiality and Decorum of the Tribunal
\n3.6 Trial Publicity
\n3.7 Lawyer as Witness
\n3.8 Special Responsibilities of a Prosecutor
\n3.9 Advocate in Nonadjudicative Proceedings
\n
\n Transactions with Persons Other Than Clients
\n
\n4.1 Truthfulness in Statements to Others
\n4.2 Communication with Person Represented by Counsel
\n4.3 Dealing with Unrepresented Person
\n4.4 Respect for Rights of Third Persons
\n
\n Law Firms and Associations
\n
\n5.1 Responsibilities of a Partner or Supervisory Lawyer
\n5.2 Responsibilities of a Subordinate Lawyer
\n5.3 Responsibilities Regarding Nonlawyer Assistants
\n5.4 Professional Independence of a Lawyer
\n5.5 Unauthorized Practice of Law: Multijurisdictional Practice of Law
\n5.6 Restrictions on Right to Practice
\n5.7 Responsibilities Regarding Law-related Services
\n
\n Public Service
\n
\n6.1 Voluntary Pro Bono Publico Service
\n6.2 Accepting Appointments
\n6.3 Membership in Legal Services Organization
\n6.4 Law Reform Activities Affecting Client Interests
\n
\n Information About Legal Services
\n
\n7.1 Communications Concerning a Lawyer’s Services
\n7.2 Advertising
\n7.3 Direct Contact with Prospective Clients
\n7.4 Communication of Fields of Practice
\n7.5 Firm Names and Letterheads
\n
\n Maintaining the Integrity of the Profession
\n
\n8.1 Bar Admission and Disciplinary Matters
\n8.2 Judicial and Legal Officials
\n8.3 Reporting Professional Misconduct
\n8.4 Misconduct
\n8.5 Disciplinary Authority; Choice of Law
\n
\n Miscellaneous
\n
\n9.1 Reporting Requirements
\n9.2 Restrictions on Filing Disciplinary Complaints
\n9.3 Cooperation with Disciplinary Authorities
\n9.4 Jurisdiction and Reciprocal Discipline
\n9.5 Lawyer as a Public Official
The maximum penalty for a violation of this Rule is disbarment.
\nComment
\n[1] This Rule prevents a lawyer from exploiting public office for the advantage of a private client. It is a counterpart of Rule 1.10(b), which applies to lawyers moving from one firm to another.
\n[2] A lawyer representing a government entity, whether employed or specially retained by the government, is subject to the Rules of Professional Conduct, including the prohibition against representing adverse interests stated in Rule 1.7 and the protections afforded former clients in Rule 1.9. In addition, such a lawyer is subject to Rule 1.11 and to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government entity may give consent under this Rule.
\n[3] Where the successive clients are a public entity and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. However, the rules governing lawyers presently or formerly employed by a government entity 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. The provisions for screening and waiver are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service.
\n[4] When the client is an agency of one government, that agency should be treated as a private client for purposes of this Rule if the lawyer thereafter represents an agency of another government, as when a lawyer represents a city and subsequently is employed by a federal agency.
\n[5] Paragraphs (a)(1) and (b) do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement. They prohibit directly relating the lawyer's compensation to the fee in the matter in which the lawyer is disqualified.
\n[6] Paragraph (a)(2) does not require that a lawyer give notice to the government entity at a time when premature disclosure would injure the client; a requirement for premature disclosure might preclude engagement of the lawyer. Such notice is, however, required to be given as soon as practicable in order that the government entity will have a reasonable opportunity to ascertain that the lawyer is complying with Rule 1.11 and to take appropriate action if it believes the lawyer is not complying.
\n[7] Paragraph (b) 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.
\n[8] Paragraphs (a) and (c) do not prohibit a lawyer from jointly representing a private party and a government entity when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.
\n[9] Paragraph (c) does not disqualify other lawyers in the entity with which the lawyer in question has become associated.
A finding of a third or subsequent disciplinary infraction under these rules shall, in and of itself, constitute discretionary grounds for suspension or disbarment. The Review Panel may exercise this discretionary power when the question is appropriately before that Panel. Any discipline imposed by another jurisdiction as contemplated by Rule 9.4 may be considered a disciplinary infraction for the purpose of this Rule.
"},{"parentId":93,"version":1,"id":55,"name":"RULE 1.12 FORMER JUDGE OR ARBITRATOR","bodyText":"The maximum penalty for a violation of this Rule is a public reprimand.
\nComment
\nThis Rule generally parallels Rule 1.11. The term "personally and substantially" signifies that a judge who was a member of a multimember 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. 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. Compliance Canons A(2), B(2) and C of the Model Code of Judicial Conduct provide that a part-time judge, judge pro tempore or retired judge recalled to active service, may not "act as a lawyer in any proceeding in which he served as a judge or in any other proceeding related thereto." Although phrased differently from this Rule, those rules correspond in meaning.
When it appears to the Investigative Panel that an attorney's death, incapacity, imprisonment or disappearance poses a substantial threat of harm to his clients or the public, the Investigative Panel shall immediately investigate the matter. If the Investigative Panel determines that such threat exists and that no partner, associate or other appropriate representative is available to prevent the harm, it shall file its findings and recommendation of action in the Supreme Court and shall seek judgment as provided in Rule 4-219.
"},{"parentId":97,"version":1,"id":56,"name":"RULE 1.13 ORGANIZATION AS CLIENT","bodyText":"The maximum penalty for a violation of this Rule is a public reprimand.
\nComment
\nThe Organization as the Client
\n[1] An organizational client is a legal entity, but it cannot act except through its officers, directors, employees, shareholders and other constituents. Officers, directors, employees and shareholders are the constituents of the corporate organizational client. The duties defined in this Comment apply equally to unincorporated associations. "Other constituents" as used in this Comment means the positions equivalent to officers, directors, employees and shareholders held by persons acting for organizational clients that are not corporations.
\n[2] When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.6. Thus, by way of example, if an organizational client requests its lawyer to investigate allegations of wrongdoing, interviews made in the course of that investigation between the lawyer and the client's employees or other constituents are covered 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 such constituents information relating to the representation 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.
\n[3] 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 organization. As defined in Rule 1.0(i), knowledge can be inferred from circumstances, and a lawyer cannot ignore the obvious.
\n[4] 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 consideration. Ordinarily, referral to a higher authority would be necessary. In some circumstances, however, it may be appropriate for the lawyer 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 information relating to the representation 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.
\n[5] 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.
\nRelation to Other Rules
\n[6] 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 information relating to the representation, but does not modify, restrict, or limit the provisions of Rule 1.6(b)(1). 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 lawyers' representation of the organization. In such circumstances Rule 1.2(d) may also be applicable, in which event, withdrawal from the representation under Rule 1.16(a)(1) may be required.
\n[7] Paragraph (d) makes clear that the authority of a lawyer to disclose information relating to a representation 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.
\n[8] 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 lawyer's discharge or withdrawal.
\nGovernmental Organization
\n[9] The duty defined in this Rule applies to governmental organizations. Defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context and is a matter beyond the scope of these Rules. See Scope [16]. 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 governmental organization, a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful act is prevented or rectified, for public business in 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 [16].
\nClarifying the Lawyer's Role
\n[10] 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 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.
\n[11] 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.
\nDual Representation
\n[12] Paragraph (e) recognizes that a lawyer for an organization may also represent a principal officer or major shareholder.
\nDerivative Actions
\n[13] 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.
\n[14] 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.
Unless otherwise provided in these rules, there shall be standing and special committees, which shall be composed of such members, serving such terms, appointed in such manner, and having such duties as the bylaws may provide. A statement of the purpose of each committee shall be published annually in the State Bar Directory.
"},{"parentId":100,"version":2,"id":160,"name":"Rule 4-107","bodyText":"This rule is reserved.
"},{"parentId":101,"version":1,"id":100,"name":"Rule 4-108. Conduct Constituting Threat of Harm to Clients or Public; Emergency Suspension","bodyText":"Either panel of the State Disciplinary Board based on the knowledge or belief that a respondent has refused, or failed without just cause, to appear in accordance with Bar Rule 4-220 before a panel or the superior court for the administration of a reprimand may file in the Supreme Court a motion for suspension of the respondent. A copy of the motion shall be served on the respondent as provided in Rule 4-203.1. The Supreme Court may in its discretion, ten days after the filing of the motion, suspend the respondent until such time as the reprimand is administered.
"},{"parentId":103,"version":1,"id":101,"name":"Rule 4-110. Definitions","bodyText":"Upon receipt of sufficient evidence that a lawyer who practices law in this State poses a threat of harm to his clients or the public, the State Disciplinary Board may conduct an Audit for Cause with the written approval of the Chairman of the Investigative Panel of the State Disciplinary Board and the President-elect of the State Bar of Georgia. Before approval can be granted, the lawyer shall be given notice that approval is being sought and be given an opportunity to appear and be heard. The sufficiency of the notice and opportunity to be heard shall be left to the sole discretion of the persons giving the approval. The State Disciplinary Board must inform the person being audited that the audit is an Audit for Cause.
"},{"parentId":106,"version":1,"id":103,"name":"Rule 4-202. Receipt of Grievances; Initial Review by Bar Counsel","bodyText":"The maximum penalty for a violation of this Rule is a public reprimand.
\n
\nComment
\n
\n[1] 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 a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. In particular, a severly incapacitated person may have no power to make legally binding decisions. Nevertheless, a client with diminished mental 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.
\n
\n[2] The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication.
\n
\n[3] 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 lawyer should consider such participation in terms of its effect on the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client's interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client's behalf.
\n
\n[4] 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).
\n
\nTaking Protective Action
\n
\n[5] 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 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.
\n
\n[6] In determining the extent of the client's diminished 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.
\n
\n[7] 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 diminished 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 diminished 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.
\n
\nDisclosure of the Client's Condition
\n
\n[8] Disclosure of the client's diminished capacity could adversely affect the client's interests. For example, raising the question of diminished capacity could, in some circumstances, lead to proceedings for involuntary commitment. Information relating to the representation is 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.
\n
\nEmergency Legal Assistance
\n
\n[9] In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such 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.
\n
\n[10] A lawyer who acts on behalf of a person with seriously diminished capacity in an emergency should keep the confidences 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.
\n
\n[11] This Rule is not violated if a lawyer acts in good faith to comply with the Rule.
The maximum penalty for a violation of this Rule is disbarment.
\n
\nComment
\n
\n[1] 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.
\n
\n[2] 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: Conflict of Interest, the supervisor's reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.
The Office of the General Counsel shall cause the Notice of Investigation to be served upon the respondent pursuant to Bar Rule 4-203.1.
"},{"parentId":113,"version":1,"id":108,"name":"Rule 4-204.3. Answer to Notice of Investigation Required","bodyText":"(a) In the event the Investigative Panel, or a subcommittee of the Panel, finds Probable Cause of the Respondent's violation of one or more of the provisions of Part IV, Chapter 1 or these rules it may refer the matter to the Supreme Court by directing the Office of the General Counsel to file with the Clerk of the Supreme Court of Georgia either:
\n
\n (1) a formal complaint, as herein provided;
\n
\n (2) a petition for the appointment of a Special Master; and
\n
\n (3) a notice of its finding of Probable Cause.
The documents specified above shall be filed in duplicate within thirty (30) days of the finding of Probable Cause unless the Investigative Panel, or a subcommittee of the Panel, or its Chairperson grants an extension of time for the filing.
\n
\n(b) A Notice of Discipline in the matter shall thereafter proceed pursuant to Bar Rule 4-208.1, 4-208.2 and 4-208.3.
With respect to a nonlawyer employed or retained by or associated with a lawyer:
\nThe maximum penalty for a violation of this Rule is disbarment.
\nComment
\n[1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation 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.
\n[2] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Georgia Rules of Professional Conduct. See Comment [1] to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Georgia Rules of Professional Conduct if engaged in by a lawyer.
\n[3] The prohibitions of paragraph (d) are designed to prevent the unauthorized practice of law in a law office by a person who has been suspended or disbarred. A lawyer who allows a suspended or disbarred lawyer to work in a law office must exercise special care to ensure that the former lawyer complies with these Rules, and that clients of the firm understand the former lawyer’s role.
(a) In addition to dismissing a complaint, the Investigative Panel, or subcommittee of the Panel, may issue a letter of instruction in any disciplinary case upon the following conditions:
\n
\n (1) the case has been thoroughly investigated, the respondent has been notified of and has had an opportunity to answer the charges brought against him, and the case has been reported to the entire Panel, or subcommittee of the Panel, assembled at a regularly scheduled meeting; and
\n
\n (2) the Investigative Panel, or subcommittee of the Panel, as evidenced through the majority vote of its members present and voting, is of the opinion that the respondent either:
\n
\n (i) has not engaged in conduct which is in violation of the provisions of Part IV, Chapter 1 of these rules; or
\n
\n (ii) has engaged in conduct that although technically in violation of such rules is not reprehensible, and has resulted in no harm or injury to any third person, and is not in violation of the spirit of such rules; or
\n
\n (iii) has engaged in conduct in violation of the Code of Professional Responsibility of Part III of these rules or any recognized voluntary creed of professionalism;
\n
\n(b) Letters of instruction shall contain a statement of the conduct of the respondent which may have violated Part III of these rules or the voluntary creed of professionalism.
\n
\n(c) A letter of instruction shall not constitute a finding of any disciplinary infraction.
(a) The respondent shall serve his or her answer to the formal complaint of the State Bar within thirty days after service of the formal complaint. In the event that respondent fails to answer or to obtain an extension of time for his answer, the facts alleged and violations charged in the formal complaint shall be deemed admitted. In the event the respondent's answer fails to address specifically the issues raised in the formal complaint, the facts alleged and violations charged in the formal complaint and not specifically addressed in the answer shall be deemed admitted. A respondent may obtain an extension of time not to exceed fifteen days to file the answer from the special master, or, when a challenge to the special master is pending, from the chairperson of the Review Panel. Extensions of time for the filing of an answer shall not be routinely granted.
\n
\n(b) The pendency of objections or challenges to one or more special masters shall provide no justification for a respondent's failure to file his answer or for failure of the State Bar or the respondent to engage in discovery.
\n
\n(c) Both parties to the disciplinary proceeding may engage in discovery under the rules of practice and procedure then applicable to civil cases in the State of Georgia.
\n
\n(d) In lieu of filing an answer to the formal complaint of the State Bar, the respondent may submit to the special master a Petition for Voluntary Discipline; provided, however, that each such petition shall contain admissions of fact and admissions of conduct in violation of Part IV, Chapter 1 of these rules sufficient to authorize the imposition of discipline. As provided in Rule 4-210(d), the special master may solicit a response to such petition from Bar counsel.
In lieu of the imposition of any other discipline, the Investigative Panel or a subcommittee of the Investigative Panel may issue letters of formal admonition or an Investigative Panel Reprimand in any disciplinary case upon the following conditions:
\n
\n(a) the case has been thoroughly investigated, the respondent has been notified of and has had an opportunity to answer the charges brought against him, and the case has been reported to the entire Panel or a subcommittee of the Panel assembled at a regularly scheduled meeting;
\n
\n(b) the Panel or a subcommittee of the Panel, as evidenced through the majority vote of its members present and voting, is of the opinion that the respondent has engaged in conduct which is in violation of the provisions of Part IV, Chapter 1 of these rules;
\n
\n(c) the Panel or a subcommittee of the Panel, as evidenced through the majority vote of its members present and voting, is of the opinion that the conduct referred to in subpart (b) hereof was engaged in:
\n
\n (1) inadvertently; or
\n
\n (2) purposefully, but in ignorance of the applicable disciplinary rule or rules; or
\n
\n (3) under such circumstances that it is the opinion of the Investigative Panel or a subcommittee of the Investigative Panel that the protection of the public and rehabilitation of the respondent would be best achieved by the issuance of a letter of admonition or an Investigative Panel Reprimand rather than by any other form of discipline.
(a) Letters of formal admonition and Investigative Panel Reprimands shall contain a statement of the specific conduct of the respondent which violates Part IV, Chapter 1 of these rules, shall state the name of the complainant and shall state the reasons for issuance of such confidential discipline.
\n
\n(b) A letter of formal admonition shall also contain the following information:
\n
\n (1) the right of the respondent to reject the letter of formal admonition under Rule 4-207;
\n
\n (2) the procedure for rejecting the letter of formal admonition under Rule 4-207; and
\n
\n (3) the effect of an accepted letter of formal admonition in the event of a third or subsequent imposition of discipline.
\n
\n(c) An Investigative Panel Reprimand shall also contain information concerning the effect of the acceptance of such reprimand in the event of a third or subsequent imposition of discipline.
The maximum penalty for a violation of this Rule is disbarment.
\nComment
\n[1] 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 judgment.
\n[2] The provisions of paragraph (e) of this Rule are not intended to allow a Georgia lawyer or law firm to create or participate in alternative business structures (ABS) in Georgia. An alternative business structure is a law firm where a non-lawyer is a manager of the firm, or has an ownership-type interest in the firm. A law firm may also be an ABS where another body is a manager of the firm, or has an ownership-type interest in the firm. This Rule only allows a Georgia lawyer to work with an ABS outside of the state of Georgia and to share fees for that work.
In any case where the Investigative Panel, or a subcommittee of the Panel, votes to impose discipline in the form of a letter of formal admonition or an Investigative Panel Reprimand, such vote shall constitute the Panel's finding of probable cause. The respondent shall have the right to reject, in writing, the imposition of such discipline. A written rejection shall be deemed an election by the respondent to continue disciplinary proceedings under these rules and shall cause the Investigative Panel to proceed under Rule 4-204.4
\n
\n(a) Notification to respondent shall be as follows:
\n
\n (1) in the case of letters of formal admonition, the letter of admonition;
\n
\n (2) in the case of an Investigative Panel Reprimand, the letter notifying the respondent to appear for the administration of the reprimand;
\n
\n (3) sent to the respondent at his address as reflected in State Bar records, via certified mail, return receipt requested.
\n
\n(b) Rejection by respondent shall be as follows:
\n
\n (1) in writing, within thirty days of notification;
\n
\n (2) sent to the Investigative Panel via certified mail, return receipt requested, directed to the Office of the General Counsel of the State Bar of Georgia at the current headquarters address of the State Bar.
\n
\n(c) If the respondent rejects the imposition of a formal admonition or Investigative Panel Reprimand, the Office of the General Counsel shall file a formal complaint with the Clerk of the Supreme Court of Georgia within thirty days of receipt of the rejection unless the Investigative Panel or its Chairperson grants an extension of time for the filing of the formal complaint.
\n
\n(d) Investigative Panel Reprimands shall be administered before the Panel by the Chairperson or his or her designee.
An accepted letter of formal admonition or an Investigative Panel Reprimand shall be considered as a disciplinary infraction for the purpose of invoking the provisions of Bar Rule 4-103. In the event of a subsequent disciplinary proceeding, the confidentiality of the imposition of confidential discipline shall be waived and the Office of the General Counsel may use such information as aggravation of discipline.
"},{"parentId":124,"version":2,"id":180,"name":"Rule 4-208.1. Notice of Discipline","bodyText":"(a) In any case where the Investigative Panel or a subcommittee of the Panel finds Probable Cause, the Panel may issue a Notice of Discipline imposing any level of public discipline authorized by these rules.
\n
\n(b) Unless the Notice of Discipline is rejected by the Respondent as provided in Rule 4-208.3, (1) the Respondent shall be in default; (2) the Respondent shall have no right to any evidentiary hearing; and (3) the Respondent shall be subject to such discipline and further proceedings as may be determined by the Supreme Court.
(a) The Notice of Discipline shall state the following:
\n
\n (1) The Rules which the Investigative Panel found that the Respondent violated;
\n
\n (2) The facts which, if unrefuted, support the finding that such Rules have been violated;
\n
\n (3) The level of public discipline recommended to be imposed;
\n
\n (4) The reasons why such level of discipline is recommended, including matters considered in mitigation and matters considered in aggravation, and such other considerations deemed by the Investigative Panel to be relevant to such recommendation;
\n
\n (5) The entire provisions of Bar Rule 4-208.3 relating to rejection of Notice of Discipline. This may be satisfied by attaching a copy of the Rule to the Notice of Discipline and referencing same in the Notice;
\n
\n (6) A copy of the Memorandum of Grievance; and
\n
\n (7) A statement of any prior discipline imposed upon the Respondent, including confidential discipline under Bar Rules 4-205 to 4-208.
\n
\n(b) The original Notice of Discipline shall be filed with the Clerk of the Supreme Court of Georgia, and a copy of the Notice of Discipline shall be served upon the Respondent pursuant to Bar Rule 4-203.1.
\n
\n(c) This subparagraph is reserved.
\n
\n(d) This subparagraph is reserved.
\n
\n(e) This subparagraph is reserved.
\n
\n(f) This subparagraph is reserved.
\n
\n(g) The Office of the General Counsel shall file the documents by which service was accomplished with the Clerk of the Supreme Court of Georgia.
\n
\n(h) The level of disciplinary sanction in any Notice of Discipline rejected by the Respondent or the Office of the General Counsel shall not be binding on the Special Master, the Review Panel or the Supreme Court of Georgia.
(a) In order to reject the Notice of Discipline the respondent or the Office of the General Counsel must file a Notice of Rejection of the Notice of Discipline with the Clerk of the Supreme Court of Georgia within 30 days following service of the Notice of Discipline.
\n
\n(b) Any Notice of Rejection by the respondent shall be served by the respondent upon the Office of the General Counsel of the State Bar of Georgia. Any Notice of Rejection by the Office of the General Counsel of the State Bar of Georgia shall be served by the General Counsel upon the respondent. No rejection by the respondent shall be considered valid unless the respondent files a written response as required by Rule 4-204.3 at or before the filing of the rejection. The respondent must also file a copy of such written response with the Clerk of the Supreme Court of Georgia at the time of filing the Notice of Rejection.
\n
\n(c) The timely filing of a Notice of Rejection shall constitute an election for the Coordinating Special Master to appoint a Special Master and the matter shall thereafter proceed pursuant to Rules 4-209 through 4-225.
(a) Within 90 days after the filing of respondent's answer to the formal complaint or the time for filing of the answer, whichever is later, the Special Master shall proceed to hear the case. The evidentiary hearing shall be reported and transcribed at the expense of the State Bar of Georiga. When the hearing is complete, the Special Master shall proceed to make findings of fact, conclusions of law and a recommendation of discipline and file a report with the Review Panel or the Supreme Court of Georgia as hereinafter provided. Alleged errors in the trial may be reviewed by the Supreme Court of Georgia when the findings and recommendations of discipline of the Review Panel are filed with the Court. There shall be no direct appeal from such proceedings of the Special Master.
\n
\n(b) Upon respondent's showing of necessity and financial inability to pay for a copy of the transcript, the Special Master shall order the State Bar of Georgia to purchase a copy of the transcript for respondent.
(a) The Office of the General Counsel shall file with the Clerk of the Supreme Court of Georgia a formal complaint and a Petition for Appointment of Special Master within thirty (30) days following the filing of a Notice of Rejection. The Notice of Discipline shall operate as the notice of finding of Probable Cause by the Investigative Panel.
\n
\n(b) The Office of the General Counsel may obtain extensions of time for the filing of the formal complaint from the Chairperson of the Investigative Panel or his or her designee.
\n
\n(c) After the rejection of a Notice of Discipline and prior to the time of the filing of the formal complaint, the Investigative Panel may consider any new evidence regarding the grievance and take appropriate action.
(a) Upon receipt of a finding of Probable Cause, a petition for appointment of a Special Master and a formal complaint from the Investigative Panel, the Clerk of the Supreme Court of Georgia shall file the matter in the records of the Court, give the matter a Supreme Court docket number and notify the Coordinating Special Master that appointment of a Special Master is appropriate. In those proceedings where a Notice of Discipline has been filed, the finding of Probable Cause need not be filed.
\n
\n(b) Within a reasonable time after receipt of a petition/motion for appointment of a Special Master or notification that a Special Master previously appointed has been disqualified, the Coordinating Special Master will appoint a Special Master to conduct formal disciplinary proceedings in such complaint. The Coordinating Special Master shall select as Special Masters experienced members of the State Bar of Georgia who possess a reputation in the Bar for ethical practice;
\nprovided, that a Special Master may not be appointed to hear a complaint against a Respondent who resides in the same circuit as that in which the Special Master resides.
(c) Upon being advised of appointment of a Special Master by the Coordinating Special Master, the Clerk of the Court shall return the original Notice of Discipline, rejection of Notice of Discipline, if applicable, formal complaint, Probable Cause finding, petition for appointment of Special Master and the signed order thereon to the Office of the General Counsel of the State Bar of Georgia. Upon notification of the appointment of a Special Master, the Office of the General Counsel shall immediately serve the Respondent with the order of appointment of a Special Master and with its formal complaint as hereinafter provided.
\n
\n(d) Within ten days of service of the notice of appointment of a Special Master, the Respondent and the State Bar of Georgia shall lodge any and all objections or challenges they may have to the competency, qualifications or impartiality of the Special Master with the chairperson of the Review Panel. The party filing such objections or challenges must also serve a copy of the objections or challenges upon the opposing counsel, the Coordinating Special Master and the
\nSpecial Master, who may respond to such objections or challenges. Within a reasonable time the chairperson of the Review Panel shall consider the challenges, the responses of Respondent, the State Bar of Georgia, the Coordinating Special Master and the Special Master, if any, determine whether the Special Master is disqualified and notify the parties, the Coordinating Special Master and the Special Master of the chairperson’s decision. Exceptions to the chairperson’s
\ndenial of disqualification are subject to review by the entire Review Panel and, thereafter, by the Supreme Court of Georgia when exceptions arising during the evidentiary hearing and exceptions to the report of the Special Master and the Review Panel are properly before the Court. In the event of disqualification of a Special Master by the chairperson of the Review Panel, said chairperson shall notify the Clerk of the Supreme Court of Georgia, the Coordinating Special
\nMaster, the Special Master, the State Bar of Georgia and the Respondent of the disqualification and appointment of a successor Special Master shall proceed as provided in this rule.
(a) The appointment of and the determination of the compensation of the Coordinating Special Master shall be the duty of the Coordinating Special Master Selection and Compensation Commission. The Commission shall be comprised of the second, third and fourth immediate past presidents of the State Bar of Georgia. If any of the above named ex officio individuals should be unable to serve, the vacancy shall be filled by appointment by the Supreme Court of Georgia.
\n
\n(b) The Coordinating Special Master shall be selected by the Coordinating Special Master Selection and Compensation Commission, with the approval of the Supreme Court of Georgia. The Coordinating Special Master shall serve as an independent contractor at the pleasure of the Coordinating Special Master Selection and Compensation Commission.
\n
\n(c) The Coordinating Special Master shall be compensated by the State Bar of Georgia from the general operating funds of the State Bar of Georgia in an amount specified by the Coordinating Special Master Selection and Compensation Commission. The Coordinating Special Master’s compensation shall be approved by the Supreme Court of Georgia. On or before the first day of each calendar year, the Coordinating Special Master Selection and Compensation Commission shall submit to the Supreme Court of Georgia for approval the hourly rate to be paid to the Coordinating Special Master during the fiscal year beginning the first day of July of that year, which rate shall continue until the conclusion of the fiscal year of the State Bar of Georgia.
\n
\n(d) The Coordinating Special Master shall have such office space, furniture and equipment and may incur such operating expenses in such amounts as may be specified by the Supreme Court of Georgia. Such amounts shall be paid by the State Bar of Georgia from the general operating funds. On or before the first day of each calendar year, the Supreme Court of Georgia will set the amount to be paid for the above items during the fiscal year beginning the first day of July of that year.
(e) If the Coordinating Special Master position is vacant or the Coordinating Special Master has recused or been disqualified from a particular matter, the Supreme Court of Georgia may appoint a temporary Acting Coordinating Special Master to act until the position can be filled or to act in any particular matter.
"},{"parentId":133,"version":2,"id":192,"name":"Rule 4-209.2. Special Masters","bodyText":"(a) The Coordinating Special Master, subject to the approval of the Supreme Court of Georgia, shall select and maintain a limited pool of qualified lawyers to serve as Special Masters for the State Disciplinary Board and Hearing Officers for the Board to Determine Fitness of Bar Applicants pursuant to Part A, Section 8 of the Rules Governing Admission to the Practice of Law in Georgia. The names of those so selected shall be placed on a list maintained by the Coordinating Special Master. Said list shall be published annually in a regular State Bar of Georgia publication. Although not mandatory, it is preferable that a lawyer so selected shall only remain on such list for five years, so that the term may generally be considered to be five years. Any lawyer whose name is removed from such list shall be eligible to be selected and placed on the list at any subsequent time.
\n(b) Training for Special Masters and Hearing Officers is expected, subject to the terms of this Rule, and shall consist of one training session within twelve months after selection. The Special Master and Hearing Officer training shall be planned and conducted by the Coordinating Special Master. Special Masters and Hearing Officers who fail to attend such a minimum training session shall periodically be removed from consideration for appointment in future cases. Failure to attend such a training session shall not be the basis for a disqualification of any Special Master or Hearing Officer; as such qualifications shall remain in the sole discretion of the Supreme Court of Georgia.
\n
\n(c) The Special Masters may be paid by the State Bar of Georgia from the general operating funds on a per case rate to be set by the Supreme Court of Georgia. Hearing Officers may be paid pursuant to Part A, Section 14 of the Rules Governing Admission to the Practice of Law in Georgia.
(d) On or before the first day of March of each calendar year, the Supreme Court of Georgia may set the amount to be paid to the Special Masters during the fiscal year beginning the first day of July of that year, which rate shall continue until the conclusion of the fiscal year of the State Bar of Georgia.
"},{"parentId":134,"version":2,"id":196,"name":"Rule 4-210. Powers and Duties of Special Masters","bodyText":"In accordance with these Rules a duly appointed Special Master or Hearing Officer shall have the following powers and duties:
\n
\n(1) to exercise general supervision over assigned disciplinary proceedings and to perform all duties specifically enumerated in these Rules;
\n
\n(2) to rule on all questions concerning the sufficiency of the formal complaint;
(3) to conduct the negotiations between the State Bar of Georgia and the Respondent, whether at a pretrial meeting set by the Special Master or at any other time;
\n(4) to receive and evaluate any Petition for Voluntary Discipline;
\n
\n(5) to grant continuances and to extend any time limit provided for herein as to any pending matter;
\n
\n(6) to apply to the Coordinating Special Master for leave to withdraw and for the appointment of a successor in the event that he or she becomes incapacitated to perform his or her duties or in the event that he or she learns that he or she and the Respondent reside in the same circuit;
\n
\n(7) to hear, determine and consolidate action on the complaints, where there are multiple complaints against a Respondent growing out of different transactions, whether they involve one or more complainants, and may proceed to make recommendations on each complaint as constituting a separate offense;
(8) to sign subpoenas and exercise the powers described in Bar Rule 4-221(b);
\n(9) to preside over evidentiary hearings and to decide questions of law and fact raised during such hearings;
\n
\n(10) to make findings of fact and conclusions of law as hereinafter provided and to submit his or her findings for consideration by the Review Panel;
\n
\n(11) to exercise general supervision over discovery by parties to disciplinary proceedings and to conduct such hearings and sign all appropriate pleadings and orders pertaining to such discovery as are provided for by the law of Georgia applicable to discovery in civil cases;
(12) in disciplinary cases, to make a recommendation of discipline, and in emergency suspension cases a recommendation as to whether the Respondent should be suspended pending further disciplinary proceedings; and
\n(13) to conduct and exercise general supervision over hearings for the Board to Determine Fitness of Bar Applicants and to make written findings of fact and recommendations pursuant to Part A, Section 8 of the Rules Governing Admission to the Practice of Law in Georgia.
"},{"parentId":135,"version":1,"id":79,"name":"RULE 5.6 RESTRICTIONS ON RIGHT TO PRACTICE","bodyText":"A lawyer shall not participate in offering or making:
\nThe maximum penalty for a violation of this Rule is a public reprimand.
\n
\nComment
\n
\n[1] An agreement restricting the right of partners or associates 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.
\n
\n[2] Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.
\n
\n[3] This Rule does not apply to prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17: Sale of Law Practice.
\n
(a) Within thirty days after a finding of Probable Cause, a formal complaint shall be prepared by the Office of the General Counsel which shall specify with reasonable particularity the acts complained of and the grounds for disciplinary action. A formal complaint shall include the names and addresses of witnesses so far as then known. A copy of the formal complaint shall be served upon the Respondent after appointment of a Special Master by the Coordinating Special
\nMaster. In those cases where a Notice of Discipline has been filed and rejected, the filing of the formal complaint shall be governed by the time period set forth in Bar Rule 4-208.4. The formal complaint shall be served pursuant to Bar Rule 4-203.1.
\n
\n(b) This subparagraph is reserved.
\n
\n(c) At all stages of the proceeding, both the Respondent and the State Bar of Georgia may be represented by counsel. Counsel representing the State Bar of Georgia shall be authorized to prepare and sign notices, pleadings, motions, complaints, and certificates for and in behalf of the State Bar of Georgia and the State Disciplinary Board.
This rule is reserved.
"},{"parentId":138,"version":2,"id":200,"name":"Rule 4-211.1 Dismissal after Formal Complaint","bodyText":"At any time after the Investigative Panel finds probable cause, the Office of General Counsel may dismiss the proceeding with the consent of the Chairperson or Vice Chairperson of the Investigative Panel or with the consent of any three members of the Investigative Panel.
"},{"parentId":139,"version":1,"id":80,"name":"RULE 5.7 RESPONSIBILITIES REGARDING LAW-RELATED SERVICES","bodyText":"The maximum penalty for a violation of this Rule is a public reprimand.
\nComment
\n[1] 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, 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.
\n[2] Rule 5.7: Restrictions Regarding Law-Related Services 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. The Rule identifies the circumstances in which all of the Georgia Rules of Professional 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: Misconduct.
\n[3] When law-related services are provided by a lawyer under circumstances that are distinct from the lawyer's provision of legal services to clients, the lawyer in providing the law-related services need not adhere to the requirements of the Georgia Rules of Professional Conduct as provided in Rule 5.7(a)(1): Restrictions Regarding Law-Related Services.
\n[4] 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 Georgia 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.
\n[5] 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): Conflict of Interest.
\n[6] 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 Georgia 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.
\n[7] 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.
\n[8] 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: Responsibilities Regarding Nonlawyer Assistants, that of nonlawyer employees in the distinct entity which the lawyer controls complies in all respects with the Georgia Rules of Professional Conduct.
\n[9] 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.
\n[10] 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(b) and 1.8(a),(b) and (f)), and to scrupulously adhere to the requirements of Rule 1.6: Confidentiality of Information 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.
\n[11] When the full protections of all of the Georgia 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.
\n
A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:
\nIn addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.
\nNo reporting rules or requirements may be imposed without specific permission of the Supreme Court granted through amendments to these Rules.
\nThere is no disciplinary penalty for a violation of this Rule.
\nComment
\n[1] 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.
\n[2] 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.
\n[3] 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 who 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.
\n[4] 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 lawyers' 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.
\n[5] 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 remain 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).
\n[6] 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.
\n[7] 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.
\n[8] 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 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.
\n[9] 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.
\n[10] 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.
\n[11] The responsibility set forth in this Rule is not intended to be enforced through disciplinary process.
A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:
\nThere is no disciplinary penalty for a violation of this Rule.
\n
\nComment
\n
\n[1] 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.
\n
\n[2] 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.
This rule is reserved.
"},{"parentId":145,"version":2,"id":272,"name":"RULE 7.1 COMMUNICATIONS CONCERNING A LAWYER'S SERVICES","bodyText":"The maximum penalty for a violation of this Rule is disbarment.
\nComment
\n[1] This rule governs the content of all communications about a lawyer's services, including the various types of advertising permitted by Rules 7.3 through 7.5. Whatever means are used to make known a lawyer's services, statements about them should be truthful.
\n[2] The prohibition in sub-paragraph (a)(2) of this Rule 7.1: Communications Concerning a Lawyer's Services of statements that may create "unjustified expectations" would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances.
\nAffirmative Disclosure
\n[3] In general, the intrusion on the First Amendment right of commercial speech resulting from rationally-based affirmative disclosure requirements is minimal, and is therefore a preferable form of regulation to absolute bans or other similar restrictions. For example, there is no significant interest in failing to include the name of at least one accountable attorney in all communications promoting the services of a lawyer or law firm as required by sub-paragraph (a)(4) of Rule 7.1: Communications Concerning a Lawyer's Services. Nor is there any substantial burden imposed as a result of the affirmative disclaimer requirement of sub-paragraph (a)(6) upon a lawyer who wishes to make a claim in the nature of "no fee unless you win." Indeed, the United States Supreme Court has specifically recognized that affirmative disclosure of a client's liability for costs and expenses of litigation may be required to prevent consumer confusion over the technical distinction between the meaning and effect of the use of such terms as "fees" and "costs" in an advertisement.
\n[4] Certain promotional communications of a lawyer may, as a result of content or circumstance, tend to mislead a consumer to mistakenly believe that the communication is something other than a form of promotional communication for which the lawyer has paid. Examples of such a communication might include advertisements for seminars on legal topics directed to the lay public when such seminars are sponsored by the lawyer, or a newsletter or newspaper column which appears to inform or to educate about the law. Paragraph (b) of this Rule 7.1: Communications Concerning a Lawyer's Services would require affirmative disclosure that a lawyer has given value in order to generate these types of public communications if such is in fact the case.
\nAccountability
\n[5] Paragraph (c) makes explicit an advertising attorney's ultimate responsibility for all the lawyer's promotional communications and would suggest that review by the lawyer prior to dissemination is advisable if any doubts exist concerning conformity of the end product with these Rules. Although prior review by disciplinary authorities is not required by these Rules, lawyers are certainly encouraged to contact disciplinary authorities prior to authorizing a promotional communication if there are any doubts concerning either an interpretation of these Rules or their application to the communication.
(a) Within 30 days from receipt of the transcript of the evidentiary hearing, the Special Master shall prepare a report which shall contain the following:
\n(1) findings of fact on the issues raised by the formal complaint, and
\n(2) conclusions of law on the issues raised by the pleadings of the parties; and
\n(3) a recommendation of discipline.
\n(b) The Special Master shall file his or her original report and recommendation with the Clerk of the State Disciplinary Board and shall serve a copy on the respondent and counsel for the State Bar of Georgia pursuant to Rule 4-203.1.
\n
\n(c) Thirty days after the Special Master's report and recommendation is filed, the Clerk of the State Disciplinary Board shall file the original record in the case directly with the Supreme Court of Georgia unless either party requests review by the Review Panel as provided in paragraph (d) of this Rule. In the event neither party requests review by the Review Panel and the matter goes directly to the Supreme Court of Georgia, both parties shall be deemed to have waived any right they may have under the Rules to file exceptions with or make request for oral argument to the Supreme Court of Georgia. Any review undertaken by the Supreme Court of Georgia shall be solely on the original record.
\n
\n(d) Upon receipt of the Special Master’s report and recommendation, either party may request review by the Review Panel as provided in Rule 4-218. Such party shall file the request and exceptions with the Clerk of the State Disciplinary Board in accordance with Rule 4-221 (f) and serve them on the opposing party within 30 days after the Special Master's report is filed with the Clerk of the State Disciplinary Board. Upon receipt of a timely written request and exceptions, the Clerk of the State Disciplinary Board shall prepare and file the record and report with the Review Panel. The responding party shall have 30 days after service of the exceptions within which to respond.
\n
[2] This Rule permits public dissemination of information concerning a lawyer's name or firm name, address and telephone number; 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.
\n[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about a lawyer, or against "undignified" advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television 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.
\n[4] Neither this Rule nor Rule 7.3: Direct Contact with Prospective Clients prohibits communications authorized by law, such as notice to members of a class in class action litigation.
\nRecord of Advertising
\n[5] Paragraph (b) requires that a record of the content and use of advertising be kept in order to facilitate enforcement of this Rule.
\n\n
(a) Upon receipt of the report from a Special Master pursuant to Rule 4-217(d), the Review Panel shall consider the record, make findings of fact and conclusions of law and determine whether a recommendation of disciplinary action will be made to the Supreme Court and the nature of such recommended discipline. The findings of fact and conclusions of law made by a Special Master shall not be binding on the Panel and may be reversed by it on the basis of the record submitted to the Panel by the Special Master.
\n
\n(b) The Respondent shall have the right to challenge the competency, qualifications, or objectivity of any member of the Review Panel considering the case against him under a procedure as provided for in the rules of the Panel.
\n
\n(c) There shall be no de novo hearing before the Review Panel except by unanimous consent of the Panel.
\n
\n(d) The Review Panel may grant rehearings, or new trials, for such reasons, in such manner, on such issues and within such times as the ends of justice may require.
\n
\n(e) The Review Panel may consider exceptions to the report of the special master and may in its discretion grant oral argument. Exceptions and briefs shall be filed with the Clerk of the State Disciplinary Board in accordance with Bar Rules 4-217(d) and 4-221(f). The responding party shall have ten (10) days after service of the exceptions within which to respond.
\n
\n(f) The Review Panel shall file its report and the complete record in the disciplinary proceeding with the Clerk of the Supreme Court. A copy of the Panel's report shall be served upon the Respondent.
The maximum penalty for a violation of this Rule is disbarment.
\nComment
\nDirect Personal Contact
\n[1] There is a potential for abuse inherent in solicitation through direct personal contact by a lawyer of prospective clients known to need legal services. It subjects the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter. A prospective client often feels overwhelmed by the situation giving rise to the need for legal services, and may have an impaired capacity for reason, judgment and protective self-interest. Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the lawyer's own interest, which may color the advice and representation offered the vulnerable prospect.
\n[2] The situation is therefore fraught with the possibility of undue influence, intimidation and overreaching. The potential for abuse inherent in solicitation of prospective clients through personal contact justifies its prohibition, particularly since the direct written contact permitted under paragraph (b) of this Rule offers an alternative means of communicating necessary information to those who may be in need of legal services. Also included in the prohibited types of personal contact are direct, personal contact through an intermediary and live contact by telephone.
\nDirect Written Solicitation
\n[3] Subject to the requirements of Rule 7.1 and paragraphs (b) and (c) of this Rule, promotional communication by a lawyer through direct written contact is generally permissible. The public's need to receive information concerning their legal rights and the availability of legal services has been consistently recognized as a basis for permitting direct written communication since this type of communication may often be the best and most effective means of informing. So long as this stream of information flows cleanly, it will be permitted to flow freely.
\n[4] Certain narrowly-drawn restrictions on this type of communication are justified by a substantial state interest in facilitating the public's intelligent selection of counsel, including the restrictions of paragraphs (a) (3) and (a) (4) which proscribe direct mailings to persons such as an injured and hospitalized accident victim or the bereaved family of a deceased.
\n[5] In order to make it clear that the communication is commercial in nature, paragraph (b) requires inclusion of an appropriate affirmative "advertisement" disclaimer. Again, the traditional exception for contact with close friends, relatives and former clients is recognized and permits elimination of the disclaimer in direct written contact with these persons.
\n[6] This Rule does not prohibit communications authorized by law, such as notice to members of a class in class action litigation.
\nPaying Others to Recommend a Lawyer
\n[7] A lawyer is allowed to pay for communications permitted by these Rules, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer's services. Thus, a legal aid agency, a prepaid legal services plan or prepaid legal insurance organization may pay to advertise legal services provided under its auspices.
"},{"parentId":150,"version":2,"id":216,"name":"Rule 4-219. Judgments and Protective Orders","bodyText":"(a) After either the Review Panel's report or the Special Master's report is filed with the Supreme Court of Georgia, the respondent and the State Bar of Georgia may file with the Court any written exceptions, supported by written argument, each may have to the report subject to the provisions of Rule 4-217 (c). All such exceptions shall be filed with the Court within 30 days of the date that the report is filed with the Court and a copy served upon the opposing party. The responding party shall have an additional 30 days to file its response with the Court. The Court may grant oral argument on any exception filed with it upon application for such argument by a party to the disciplinary proceedings. The Court will promptly consider the report of the Review Panel or the Special Master, any exceptions, and any responses filed by any party to such exceptions, and enter judgment upon the formal complaint. A copy of the Court's judgment shall be transmitted to the State Bar of Georgia and the respondent by the Court.
\n
\n(b) In cases in which the Supreme Court of Georgia orders disbarment, voluntary surrender of license or suspension, or the respondent is disbarred or suspended on a Notice of Discipline, the Review Panel shall publish in a local newspaper or newspapers and on the official State Bar of Georgia website, notice of the discipline, including the respondent's full name and business address, the nature of the discipline imposed and the effective dates.
\n
\n(c) (1) After a final judgment of disbarment or suspension, including a disbarment or suspension on a Notice of Discipline, the respondent shall immediately cease the practice of law in Georgia and shall, within 30 days, notify all clients of his inability to represent them and of the necessity for promptly retaining new counsel, and shall take all actions necessary to protect the interests of his clients. Within 45 days after a final judgment of disbarment or suspension, the respondent shall certify to the Court that he has satisfied the requirements of this Rule. Should the respondent fail to comply with the requirements of this Rule, the Supreme Court of Georgia, upon its own motion or upon motion of the Office of the General Counsel, and after ten days notice to the respondent and proof of his failure to notify or protect his clients, may hold the respondent in contempt and, pursuant to Rule 4-228, order that a member or members of the State Bar of Georgia take charge of the files and records of the respondent and proceed to notify all clients and to take such steps as seem indicated to protect their interests. Motions for reconsideration may be taken from the issuance or denial of such protective order by either the respondent or by the State Bar of Georgia.
(2) After a final judgment of disbarment or suspension under Part IV of these Rules, including a disbarment or suspension on a Notice of Discipline, the respondent shall take such action necessary to cause the removal of any indicia of the respondent as a lawyer, legal assistant, legal clerk or person with similar status. In the event the respondent should maintain a presence in an office where the practice of law is conducted, the respondent shall not:
\n(i) have any contact with the clients of the office either in person, by telephone or in writing; or
\n
\n(ii) have any contact with persons who have legal dealings with the office either in person, by telephone or in writing.
A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer who is a specialist in a particular field of law by experience, specialized training or education, or is certified by a recognized and bona fide professional entity, may communicate such specialty or certification so long as the statement is not false or misleading.
\n
\nThe maximum penalty for a violation of this Rule is a public reprimand.
\n
\nComment
\n
\n[1] This Rule permits a lawyer to indicate areas of practice in communications about the lawyer's services. If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted to so indicate.
\n
\n[2] A lawyer may truthfully communicate the fact that the lawyer is a specialist or is certified in a particular field of law by experience or as a result of having been certified as a "specialist" by successfully completing a particular program of legal specialization. An example of a proper use of the term would be "Certified as a Civil Trial Specialist by XYZ Institute" provided such was in fact the case, such statement would not be false or misleading and provided further that the Civil Trial Specialist program of XYZ Institute is a recognized and bona fide professional entity.
(a) Upon a final judgment of disbarment or suspension, notice of the action taken shall be given by the Office of the General Counsel of the State Bar of Georgia to the clerks of all courts of record in this State and to the Secretary of the State Bar of Georgia, and the name of the respondent in question shall be stricken from the rolls of said courts and from the rolls of the State Bar of Georgia either permanently, in case of disbarment, or for the prescribed period in case of suspension.
\n
\n(b) Review Panel Reprimands shall be administered before the Panel by the chairperson or his or her designee.
\n
\n(c) Public Reprimands shall be prepared by the Review Panel, the Chairperson of the Review Panel or his or her designee, and shall be read in open court, in the presence of the respondent, by the judge of the superior court in the county in which the respondent resides or in the county in which the disciplinary infraction occurred, with the location to be specified by the Review Panel, subject to the approval of the Supreme Court.
\n
\n(d) After a Public or Review Panel Reprimand has been administered, a certificate reciting the fact of the administration of the reprimand and the date of its administration shall be filed with the Supreme Court. There shall be attached to such certificate a copy of the reprimand. Both the certificate and the copy of the reprimand shall become a part of the record in the disciplinary proceeding.
\n
\n(e) In the event of a final judgment of acquittal, the State Bar of Georgia shall, if directed by the respondent, give notice thereof to the clerk of the superior court of the county in which the respondent resides. The respondent may give reasonable public notice of the judgment or acquittal.
The maximum penalty for a violation of this Rule is a public reprimand.
\nComment
\n[1] Firm names and letterheads are subject to the general requirement of all advertising that the communication must not be false, fraudulent, deceptive or misleading. Therefore, lawyers sharing office facilities, but who are not in fact partners, may not denominate themselves as, for example, "Smith and Jones," for that title suggests partnership in the practice of law.
\n[2] Trade names may be used so long as the name includes the name of at least one or more of the lawyers actively practicing with the firm. Firm names consisting entirely of the names of deceased or retired partners have traditionally been permitted and have proven a useful means of identification. Sub-paragraph (e)(1) permits their continued use as an exception to the requirement that a firm name include the name of at least one active member.
\n
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:
\nThe maximum penalty for a violation of this Rule is disbarment.
\n
\nComment
\n
\n[1] 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 misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct. This Rule also requires affirmative clarification of any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware.
\n
\n[2] This Rule is subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding 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.
\n
\n[3] 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.
\nThe maximum penalty for a violation of this Rule is disbarment.
\n
\nComment
\n
\n[1] 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.
\n
\n[2] When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.
\n
\n[3] To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.
(a) Oaths. Before entering upon his duties as herein provided, each member of the State Disciplinary Board and each Special Master shall subscribe to an oath to be administered by any person authorized to administer oaths under the laws of this State, such oath to be in writing and filed with the Executive Director of the State Bar of Georgia. The form of such oath shall be:
\n"I do solemnly swear that I will faithfully and impartially discharge and perform all of the duties incumbent upon me as a member of the State Disciplinary Board of the State Bar of Georgia/Special Master according to the best of my ability and understanding and agreeable to the laws and Constitution of this State and the Constitution of the United States so help me God."
\n(b) Witnesses and Evidence; Contempt.
\n(1) The respondent and the State Bar of Georgia shall have the right to require the issuance of subpoenas for the attendance of witnesses to testify or to produce books and papers. The State Disciplinary Board or a special master shall have power to compel the attendance of witnesses and the production of books, papers, and documents, relevant to the matter under investigation, by subpoena, and as further provided by law in civil cases under the laws of Georgia.
\n
\n(2) The following shall subject a person to rule for contempt of the Special Master or Panel:
\n(i) disregard, in any manner whatever, of a subpoena issued pursuant to Rule 4-221 (b) (1),
\n(ii) refusal to answer any pertinent or proper question of a Special Master or Board member, or
\n(iii) wilful or flagrant violation of a lawful directive of a Special Master or Board member.
\nIt shall be the duty of the chairperson of the affected Panel or Special Master to report the fact to the Chief Judge of the superior court in and for the county in which said investigation, trial or hearing is being held. The superior court shall have jurisdiction of the matter and shall follow the procedures for contempt as are applicable in the case of a witness subpoenaed to appear and give evidence on the trial of a civil case before the superior court under the laws in Georgia.
\n(3) Any member of the State Disciplinary Board and any Special Master shall have power to administer oaths and affirmations and to issue any subpoena herein provided for.
\n
\n(4) Depositions may be taken by the respondent or the State Bar of Georgia in the same manner and under the same provisions as may be done in civil cases under the laws of Georgia, and such depositions may be used upon the trial or an investigation or hearing in the same manner as such depositions are admissible in evidence in civil cases under the laws of Georgia.
\n(5) All witnesses attending any hearing provided for under these Rules shall be entitled to the same fees as now are allowed by law to witnesses attending trials in civil cases in the superior courts of this State under subpoena, and said fees shall be assessed against the parties to the proceedings under the rule of law applicable to civil suits in the superior courts of this State.
\n
\n(6) Whenever the deposition of any person is to be taken in this State pursuant to the laws of another state, territory, province or commonwealth, or of the United States or of another country for use in attorney discipline, fitness or disability proceedings there, the chairperson of the Investigative Panel, or his or her designee upon petition, may issue a summons or subpoena as provided in this Rule to compel the attendance of witnesses and production of documents at such deposition.
\n(c) Venue of Hearings.
\n(1) The hearings on all complaints and charges against resident respondents shall be held in the county of residence of the respondent unless he otherwise agrees.
\n
\n(2) Where the respondent is a nonresident of the State of Georgia and the complaint arose in the State of Georgia, the hearing shall be held in the county where the complaint arose.
\n
\n(3) When the respondent is a nonresident of the State of Georgia and the offense occurs outside the State, the hearing may be held in the county of the State Bar of Georgia headquarters.
\n(d) Confidentiality of Investigations and Proceedings.
\n(1) The State Bar of Georgia shall maintain as confidential all disciplinary investigations and proceedings pending at the screening or investigative stage, unless otherwise provided by these Rules.
\n
\n(2) After a proceeding under these Rules is filed with the Supreme Court of Georgia, all evidentiary and motions hearings shall be open to the public and all reports rendered shall be public documents.
\n
\n(3) Nothing in these Rules shall prohibit the complainant, respondent or third party from disclosing information regarding a disciplinary proceeding, unless otherwise ordered by the Supreme Court of Georgia or a Special Master in proceedings under these Rules.
\n
\n(4) The Office of the General Counsel of the State Bar of Georgia or the Investigative Panel of the State Disciplinary Board may reveal or authorize disclosure of information which would otherwise be confidential under this Rule under the following circumstances:
\n(i) In the event of a charge of wrongful conduct against any member of the State Disciplinary Board or any person who is otherwise connected with the disciplinary proceeding in any way, either Panel of the Board or its Chairperson or his or her designee, may authorize the use of information concerning disciplinary investigations or proceedings to aid in the defense against such charge.
\n
\n(ii) In the event the Office of the General Counsel receives information that suggests criminal activity, such information may be revealed to the appropriate criminal prosecutor.
\n
\n(iii) In the event of subsequent disciplinary proceedings against a lawyer, the Office of the General Counsel may, in aggravation of discipline in the pending disciplinary case, reveal the imposition of confidential discipline under Rules 4-205 to 4-208 and facts underlying the imposition of discipline.
\n
\n(iv) A complainant or lawyer representing the complainant may be notified of the status or disposition of the complaint.
\n
\n(v) When public statements that are false or misleading are made about any otherwise confidential disciplinary case, the Office of the General Counsel may disclose all information necessary to correct such false or misleading statements.
\n(5) The Office of the General Counsel may reveal confidential information to the following persons if it appears that the information may assist them in the discharge of their duties:
\n(i) The Committee on the Arbitration of Attorney Fee Disputes or the comparable body in other jurisdictions;
\n
\n(ii) The Trustees of the Clients' Security Fund or the comparable body in other jurisdictions;
\n
\n(iii) The Judicial Nominating Commission or the comparable body in other jurisdictions;
\n
\n(iv) The Lawyer Assistance Program or the comparable body in other jurisdictions;
\n
\n(v) The Board to Determine Fitness of Bar Applicants or the comparable body in other jurisdictions;
\n
\n(vi) The Judicial Qualifications Commission or the comparable body in other jurisdictions;
\n
\n(vii) The Executive Committee with the specific approval of the following representatives of the Investigative Panel of the State Disciplinary Board: the chairperson, the vice-chairperson and a third representative designated by the chairperson;
\n
\n(viii) The Formal Advisory Opinion Board;
\n
\n(ix) The Consumer Assistance Program;
\n
\n(x) The General Counsel Overview Committee;
\n
\n(xi) An office or committee charged with discipline appointed by the United States Circuit or District Court or the highest court of any state, District of Columbia, commonwealth or possession of the United States; and
\n
\n(xii) The Unlicensed Practice of Law Department.
\n(6) Any information used by the Office of the General Counsel in a proceeding under Rule 4-108 or in a proceeding to obtain a Receiver to administer the files of a member of the State Bar of Georgia, shall not be confidential under this Rule.
\n
\n(7) The Office of the General Counsel may reveal confidential information when required by law or court order.
\n
\n(8) The authority or discretion to reveal confidential information under this Rule shall not constitute a waiver of any evidentiary, statutory or other privilege which may be asserted by the State Bar of Georgia or the State Disciplinary Board under Bar Rules or applicable law.
\n
\n(9) Nothing in this Rule shall prohibit the Office of the General Counsel or the Investigative Panel from interviewing potential witnesses or placing the Notice of Investigation out for service by sheriff or other authorized person.
\n
\n(10) Members of the Office of the General Counsel and State Disciplinary Board may respond to specific inquiries concerning matters that have been made public by the complainant, respondent or third parties but are otherwise confidential under these Rules by acknowledging the existence and status of the proceeding.
\n
\n(11) The State Bar of Georgia shall not disclose information concerning discipline imposed on a lawyer under prior Supreme Court Rules that was confidential when imposed, unless authorized to do so by said prior Rules.
\n(e) Burden of Proof; Evidence.
\n(1) In all proceedings under this Chapter the burden of proof shall be on the State Bar of Georgia, except for proceedings under Rule 4-106.
\n
\n(2) In all proceedings under this chapter occurring after a finding of probable cause as described in Rule 4-204.4, the procedures and rules of evidence applicable in civil cases under the laws of Georgia shall apply, except that the quantum of proof required of the State Bar of Georgia shall be clear and convincing evidence.
\n(f) Pleadings and Copies. Original pleadings shall be filed with the Clerk of the State Disciplinary Board at the headquarters of the State Bar of Georgia and copies served upon the Special Master and all parties to the disciplinary proceeding. Depositions and other original discovery shall be retained by counsel and shall not be filed except as permitted under the Uniform Superior Court Rules.
\n
\n(g) Pleadings and Communications Privileged. Pleadings and oral and written statements of members of the State Disciplinary Board, members and designees of the Lawyer Assistance Program, Special Masters, Bar counsel and investigators, complainants, witnesses, and respondents and their counsel made to one another or filed in the record during any investigation, intervention, hearing or other disciplinary proceeding under this Part IV, and pertinent to the disciplinary proceeding, are made in performance of a legal and public duty, are absolutely privileged, and under no circumstances form the basis for a right of action.
\nThere is no disciplinary penalty for a violation of this Rule.
\n
\nComment
\n
\n[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigations when they know of a violation of the Georgia 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) No proceeding under Part IV, Chapter 2, shall be brought unless a Memorandum of Grievance has been received at State Bar of Georgia headquarters or instituted by the Investigative Panel within four years after the commission of the act. Provided, however, this limitation shall be tolled during any period of time, not to exceed two years, that the offender or the offense is unknown, the offender's whereabouts are unknown, or the offender's name is removed from the roll of those authorized to practice law in this State.
\n
\n(b) Referral of a matter to the Investigative Panel by the Office of the General Counsel shall occur within twelve months of the receipt of the Memorandum of Grievance at State Bar of Georgia headquarters or institution of a Memorandum of Grievance by the Investigative Panel.
The maximum penalty for a violation of Rule 8.4 (a) (1) is the maximum penalty for the specific Rule violated. The maximum penalty for a violation of Rule 8.4 (a) (2) through (c) is disbarment.
\nComment
\n[1] The prohibitions of this Rule as well as the prohibitions of Bar Rule 4-102 prevents a lawyer from attempting to violate the Georgia Rules of Professional Conduct or from knowingly aiding or abetting, or providing direct or indirect assistance or inducement to another person who violates or attempts to violate a rule of professional conduct. A lawyer may not avoid a violation of the rules by instructing a nonlawyer, who is not subject to the rules, to act where the lawyer can not.
\n[2] This Rule, as its predecessor, is drawn in terms of acts involving "moral turpitude" with, however, a recognition that some such offenses concern matters of personal morality and have no specific connection to fitness for the practice of law. Here the concern is limited to those matters which fall under both the rubric of "moral turpitude" and involve underlying conduct relating to the fitness of the lawyer to practice law.
\n[3] Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
\n[4] Reserved.
\n[5] 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.
\n[6] Persons holding public office assume 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.
Comment
\nDisciplinary Authority
\n[1] 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 Domestic or Foreign 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, Rule 9.4: Jurisdiction and Reciprocal Discipline. A Domestic or Foreign 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 Domestic or Foreign 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.
\nChoice of Law
\n[2] A lawyer or Domestic or Foreign Lawyer may be potentially subject to more than one set of rules of professional conduct which impose different obligations. The lawyer or Domestic or Foreign 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 or Domestic or Foreign Lawyer is licensed to practice. Additionally, the lawyer or Domestic or Foreign Lawyer's conduct may involve significant contacts with more than one jurisdiction.
\n[3] 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 or Domestic or Foreign 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 or Domestic or Foreign Lawyers who act reasonably in the face of uncertainty.
\n[4] Paragraph (b)(1) provides that as to a lawyer or Domestic or Foreign Lawyer conduct relating to a proceeding pending before a tribunal, the lawyer or Domestic or Foreign 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 or Domestic or Foreign Lawyer shall be subject to the rules of the jurisdiction in which the lawyer or Domestic or Foreign 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.
\n[5] When a lawyer or Domestic or Foreign Lawyer's conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer or Domestic or Foreign Lawyer's conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer or Domestic or Foreign Lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer or Domestic or Foreign Lawyer reasonably believes the predominant effect will occur, the lawyer or Domestic or Foreign Lawyer shall not be subject to discipline under this Rule.
\n[6] If two admitting jurisdictions were to proceed against a lawyer or Domestic or Foreign 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 or Domestic or Foreign Lawyer on the basis of two inconsistent rules.
\n[7] The choice of law provision applies to lawyers or Domestic or Foreign Lawyer engaged in transnational practice, unless international law, treaties or other agreements between competent regulatory authorities in the affected jurisdictions provide otherwise.
(a) The record of any grievance against a respondent under these rules which does not result in discipline against the respondent shall be expunged by the State Disciplinary Board in accordance with the following:
\n
\n(1) those grievances closed by the Office of the General Counsel after screening pursuant to Rule 4-202(c) shall be expunged after one year;
\n
\n(2) those grievances dismissed by the Investigative Panel of the State Disciplinary Board after a probable cause investigation pursuant to Rule 4-204 (a) shall be expunged after two years; and
\n
\n(3) those complaints dismissed by the Supreme Court after formal proceedings shall be expunged after two years.
\n(b) Definition. The terms "expunge" and "expunction" shall mean that all records or other evidence of the existence of the complaint shall be destroyed.
\n
\n(c) Effect of Expungement. After a file has been expunged, any agency response to an inquiry requiring a reference to the matter shall state that any record the agency may have had of such matter has been expunged pursuant to court rule and, in addition, shall state that no inference adverse to the respondent is to be drawn on the basis of the incident in question. The respondent may answer any inquiry requiring a reference to an expunged matter by stating that the grievance or formal complaint was dismissed and thereafter expunged pursuant to court rule.
\n
\n(d) Retention of Records. Upon application to the State Disciplinary Board by bar counsel, for good cause shown and with notice to the respondent and opportunity to be heard, records which should otherwise be expunged under this Rule may be retained for such additional period of time not exceeding three years as the State Disciplinary Board deems appropriate. Counsel may seek a further extension of the period for which retention of the records is authorized whenever a previous application has been granted for the maximum period permitted hereunder.
\n
\n(e) A lawyer may respond in the negative when asked if there are any complaints against the lawyer if the matter has been expunged pursuant to this rule. Before making a negative response to any such inquiry, the lawyer shall confirm the expunction of the record and shall not presume that any matter has been expunged.
\n
\n(f) A lawyer may respond in the negative when asked if he has ever been professionally disciplined or determined to have violated any professional disciplinary rules if all grievances filed against the lawyer have either been dismissed or dismissed with a letter of instruction.
\n
The maximum penalty for a violation of this Rule is a public reprimand.
\nComment
\n[1] The State Bar of Georgia is the regulatory authority created by the Supreme Court of Georgia to oversee the practice of law in Georgia. In order to provide effective disciplinary programs, the State Bar of Georgia needs information about its members.
\n
The Supreme Court of Georgia may, on motion of the State Bar of Georgia, amend the rules of the State Bar of Georgia at any time; provided, however, that no motion to amend these rules may be filed until thirty (30) days after a notice setting forth the proposed amendment has been published in the Georgia Bar Journal or any other document of the State Bar of Georgia. The said notice shall contain the following:
\nAt the same time that notice is sent to its membership, the State Bar of Georgia shall file a copy of such a notice with the Clerk of the Supreme Court of Georgia.
Each member of the State Bar of Georgia shall be entitled to file a written objection to any motion to amend these rules by the State Bar of Georgia. Each objection shall contain the following:
\nAll written objections shall be filed with the Clerk of the Supreme Court of the State of Georgia before the date which the State Bar of Georgia has designated for filing its said motion to amend these rules under Rule 5-101. Any member filing a written objection shall serve the State Bar of Georgia with a copy thereof by mailing the same to the General Counsel of the State Bar of Georgia at the address of its headquarters.
In addition to the procedures described in Rules 5-101 through 5-103, at least thirty (30) days notice shall be given to the membership of the State Bar of Georgia in the Georgia State Bar Journal, the Georgia State Bar News or any other document of the State Bar of Georgia of any meeting of the Board of Governors of the State Bar of Georgia at which amendment of Rule 1-502 (Amount of License Fees) will be considered and acted upon. The notice to the general membership of the State Bar of Georgia shall contain:
\nThe regulatory proceedings of the State Bar are judicial in nature. Therefore, members of the State Disciplinary Board, members and designees of the Committee on Lawyer Impairment, special masters, Bar counsel, special prosecutors, investigators and staff are entitled to judicial immunity when engaged in regulatory activities.
"},{"parentId":195,"version":2,"id":228,"name":"Rule 4-227. Petitions for Voluntary Discipline","bodyText":"(a) A petition for voluntary discipline shall contain admissions of fact and admissions of conduct in violation of Part IV, Chapter 1 of these Rules sufficient to authorize the imposition of discipline.
\n
\n(b) Prior to the issuance of a formal complaint, a respondent may submit a petition for voluntary discipline seeking any level of discipline authorized under these Rules.
\n(1) Those petitions seeking private discipline shall be filed with the Office of the General Counsel and assigned to a member of the Investigative Panel. The Investigative Panel of the State Disciplinary Board shall conduct an investigation and determine whether to accept or reject the petition as outlined at Rule 4-203 (a) (9).
\n
\n(2) Those petitions seeking public discipline shall be filed directly with the Clerk of the Supreme Court. The Office of the General Counsel shall have 30 days within which to file a response. The Court shall issue an appropriate order.
\n(c) After the issuance of a formal complaint a respondent may submit a petition for voluntary discipline seeking any level of discipline authorized under these Rules.
\n(1) The petition shall be filed with the Clerk of the State Disciplinary Board at the headquarters of the State Bar of Georgia and copies served upon the Special Master and all parties to the disciplinary proceeding. The Special Master shall allow Bar counsel 30 days within which to respond. The Office of the General Counsel may assent to the petition or may file a response, stating objections and giving the reasons therefor. The Office of the General Counsel shall serve a copy of its response upon the respondent.
\n
\n(2) The Special Master shall consider the petition, the State Bar of Georgia's response, and the record as it then exists and may accept or reject the petition for voluntary discipline.
\n
\n(3) The Special Master may reject a petition for such cause or causes as seem appropriate to the Special Master. Such causes may include but are not limited to a finding that:
\n(i) the petition fails to contain admissions of fact and admissions of conduct in violation of Part IV, Chapter 1 of these Rules sufficient to authorize the imposition of discipline;
\n
\n(ii) the petition fails to request appropriate discipline;
\n
\n(iii) the petition fails to contain sufficient information concerning the admissions of fact and the admissions of conduct;
\n
\n(iv) the record in the proceeding does not contain sufficient information upon which to base a decision to accept or reject.
\n(4) The Special Master's decision to reject a petition for voluntary discipline does not preclude the filing of a subsequent petition and is not subject to review by either the Review Panel or the Supreme Court of Georgia. If the Special Master rejects a petition for voluntary discipline, the disciplinary case shall proceed as provided by these Rules.
\n
\n(5) If the Special Master accepts the petition for voluntary discipline, s/he shall enter a report making findings of fact and conclusions of law and deliver same to the Clerk of the State Disciplinary Board. The Clerk of the State Disciplinary Board shall file the report and the complete record in the disciplinary proceeding with the Clerk of the Supreme Court of Georgia. A copy of the Special Master's report shall be served upon the respondent. The Court shall issue an appropriate order.
\n
\n(6) Pursuant to Rule 4-210 (5), the Special Master may, in his or her discretion, extend any of the time limits in these Rules in order to adequately consider a petition for voluntary discipline.
\n
During the investigation of a grievance filed under these Rules, the lawyer complained against shall respond to disciplinary authorities in accordance with State Bar Rules.
\n
\nThe maximum penalty for a violation of this Rule is a public reprimand.
\n
\nComment
\n
\n[1] Much of the work in the disciplinary process is performed by volunteer lawyers and lay persons. In order to make good use of their valuable time, it is imperative that the lawyer complained against cooperate with the investigation. In particular, the lawyer must file a sworn response with the member of the Investigative Panel charged with the responsibility of investigating the complaint.
\n
\n[2] Nothing in this Rule prohibits a lawyer from responding by making a Fifth Amendment objection, if appropriate. However, disciplinary proceedings are civil in nature and the use of a Fifth Amendment objection will give rise to a presumption against the lawyer.
\n
The maximum penalty for a violation of this Rule is disbarment.
\nComment
\n[1] If a lawyer suspended or disbarred in one jurisdiction is also admitted in another jurisdiction and no action can be taken against the lawyer until a new disciplinary proceeding is instituted, tried, and concluded, the public in the second jurisdiction is left unprotected against a lawyer who has been judicially determined to be unfit. Any procedure which so exposes innocent clients to harm cannot be justified. The spectacle of a lawyer disbarred in one jurisdiction yet permitted to practice elsewhere exposes the profession to criticism and undermines public confidence in the administration of justice.
\n[2] Reserved.
\n[3] The imposition of discipline in one jurisdiction does not mean that Georgia and every other jurisdiction in which the lawyer is admitted must necessarily impose discipline. The Review Panel has jurisdiction to recommend reciprocal discipline on the basis of public discipline imposed by a jurisdiction in which the respondent is licensed.
\n[4] A judicial determination of misconduct by the respondent in another jurisdiction is conclusive, and not subject to relitigation in the forum jurisdiction. The Review Panel should recommend substantially similar discipline unless it determines, after review limited to the record of the proceedings in the foreign jurisdiction, that one of the grounds specified in paragraph (b)(3) exists. This Rule applies whether or not the respondent is admitted to practice in the foreign jurisdiction. See also, Rule 8.5, Comment [1].
\n[5] For purposes of this Rule, the suspension or placement of a lawyer on inactive status in another jurisdiction because of want of sound mind, senility, habitual intoxication or drug addiction, to the extent of impairment of competency as an attorney shall be considered a disciplinary suspension under the Rules of the State Bar of Georgia.
[1] Bar Rule 4-110 includes additional definitions for terminology used in the procedural section of these rules.
\nConfirmed in Writing
\n[1A] 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.
\nFirm
\n[2] Whether two or more lawyers constitute a firm within paragraph (e) 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. 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. 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.
\n[3] With respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Georgia 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.
\n[4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these rules.
\nFraud
\n[5] When used in these rules, the terms "fraud" or "fraudulent" refers 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.
\nInformed Consent
\n[6] Many of the Georgia 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.
\n[7] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person's consent be confirmed in writing. See Rules 1.7 (b) and 1.9 (a). For a definition of "writing" and "confirmed in writing," see paragraphs (s) and (b). Other Rules require that a client's consent be obtained in a writing signed by the client. See, e.g., Rules 1.8 (a) (3) and (g). For a definition of "signed," see paragraph (s).
\nScreened
\n[8] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules 1.11 and 1.12.
\n[9] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials relating to the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel.
\n[10] 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.
\nWriting
\n[11] The purpose of this definition is to permit a lawyer to use developing technologies that maintain an objective record of a communication that does not rely upon the memory of the lawyer or any other person. See OCGA § 10-12-2(8).
[1] Bar Rule 4-110 includes additional definitions for terminology used in the procedural section of these rules.
\nConfirmed in Writing
\n[1A] 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.
\nFirm
\n[2] Whether two or more lawyers constitute a firm within paragraph (e) 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. 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. 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.
\n[3] With respect to the law department of an organization, including the government, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Georgia 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.
\n[4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these rules.
\nFraud
\n[5] When used in these rules, the terms "fraud" or "fraudulent" refers 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.
\nInformed Consent
\n[6] Many of the Georgia 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.
\n[7] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person's consent be confirmed in writing. See Rules 1.7 (b) and 1.9 (a). For a definition of "writing" and "confirmed in writing," see paragraphs (s) and (b). Other Rules require that a client's consent be obtained in a writing signed by the client. See, e.g., Rules 1.8 (a) (3) and (g). For a definition of "signed," see paragraph (s).
\nScreened
\n[8] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules 1.11 and 1.12.
\n[9] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials relating to the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel.
\n[10] 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.
\nWriting
\n[11] The purpose of this definition is to permit a lawyer to use developing technologies that maintain an objective record of a communication that does not rely upon the memory of the lawyer or any other person. See OCGA § 10-12-2(8).
(A) Membership, Appointment and Terms:
\nThere is established a permanent commission of the State Bar of Georgia known as the Commission on Continuing Lawyer Competency. The Commission shall consist of sixteen (16) members, six (6) of whom shall be appointed by the Supreme Court of Georgia and six (6) by the Board of Governors of the State Bar of Georgia, one (1) shall be designated by the Executive Committee of the State Bar of Georgia, one (1) shall be the chair of the Board of Trustees of the Institute of Continuing Legal Education in Georgia or his or her designee, one (1) shall be designated by the Chief Justice's Commission on Professionalism, and one (1) shall be designated by the President of the Young Lawyers Division of the State Bar of Georgia. Members shall be members of the State Bar of Georgia. Members of the Commission appointed by the Supreme Court of Georgia and by the Board of Governors of the State Bar shall be appointed for staggered three (3) year terms and until their successors are appointed, except that the initial appointed members of the Commission shall consist of four (4) members appointed for a term of one (1) year, four (4) members appointed for a term of two (2) years, and four (4) members appointed for a term of three (3) years. The appointed members of the initial Commission shall be appointed half by the Supreme Court and half by the Board of Governors of the State Bar of Georgia. No member appointed by the Supreme Court or the Board of Governors may serve more than two (2) consecutive terms as a member of the Commission, and no such member may be reappointed otherwise to the Commission until he or she has been inactive as a Commission member for three (3) consecutive years. Members of the Commission designated by the Executive Committee, the chair of the Board of Trustees of the Institute of Continuing Legal Education, the Chief Justice's Commission on Professionalism, and the President of the Young Lawyers Division shall each serve for a term of one (1) year. No person so designated to the Commission may serve more than three (3) consecutive terms as a member of the Commission, and no such member may be redesignated otherwise to the Commission until he or she has been inactive as a Commission member for three (3) consecutive years.
\nThe Commission shall designate each year one of its members to serve as Chairperson. The Executive Director of the State Bar of Georgia, the Executive Director of the Institute of Continuing Legal Education of Georgia, the Executive Director of the Chief Justice's Commission on Professionalism, and the Executive Director of the Commission shall serve as ex-officio members of the Commission, but shall have no vote. The Executive Director of the Commission shall serve as Secretary of the Commission.
\nRegulations
\n(1) Quorum. Eight voting members shall constitute a quorum of the CCLC.
\n(2) Chair. The Chair of the CCLC shall be elected by majority vote during the first meeting of CCLC in each calendar year.
\n(3) Vice Chair. The CCLC shall elect a Vice Chair by majority vote during the first meeting of the CCLC in each calendar year.
\n(4) Executive Committee. The Executive Committee of the CCLC shall be comprised of the Chairperson, Vice Chairperson, and a voting member to be appointed by the Chairperson. Its purpose is to conduct all necessary business of the CCLC that may arise between meetings of the full Commission. In such matters it shall have complete authority to act for the CCLC.
\n(5) Standards of the Profession Committee. The Chair of the CCLC shall appoint a chair of the Standards of the Profession Committee which shall devise and recommend policy to the Commission for the operation of the Transition Into Law Practice Program. The Standards of the Profession Committee shall be composed of the designee of the Executive Committee of the State Bar of Georgia, the chair of the Board of Trustees of the Institute of Continuing Legal Education in Georgia or his or her designee, the designee of the Chief Justice's Commission on Professionalism, the designee of the President of the Young Lawyers Division of the State Bar of Georgia, and any other member of the State Bar of Georgia appointed to the Standards of the Profession Committee by the Chairperson of the Commission. In addition, the Standards of the Profession Committee of the Commission shall initially be composed of the members of the Standards of the Profession Committee of the State Bar of Georgia, who shall serve at the pleasure of the Chair of the Commission.
\n(6) Other Committees. The Chairperson may appoint from time to time any committees deemed advisable.
\n(7) Vacancy. A vacancy on the CCLC, in its officers, or on its committees, occurring for whatever reason, shall be filled as soon as practical in the same manner as the original holder of the position was selected.
\n(B) Powers and Duties of the Board:
\n(1) The Commission shall have general supervisory authority to administer these Rules.
\n(2) The Commission shall have specific duties and responsibilities:
\n(a) To approve all or portions of individual courses and programs of a sponsor which satisfy the educational requirements of Rule 8-106;
\n(b) To determine the number of credit hours allowed for each course or educational activity;
\n(c) To encourage courses and programs by established organizations, whether offered within or without the State;
\n(d) To educate the public about the legal profession;
\n(e) To adopt rules and regulations not inconsistent with these Rules;
\n(f) To establish an office or offices and to employ such persons as the Commission deems necessary for the proper administration of these Rules and to delegate to them appropriate authority, subject to the review of the Commission;
\n(g) To report at least annually to the State Bar and to the Supreme Court the activities and recommendations of the Commission and the effectiveness of the enforcement of these Rules;
\n(h) To report promptly to the Supreme Court any violation of these Rules.
\nRegulations
\n(1) Appeals. The CCLC is the final authority on all matters entrusted to it under these rules. Therefore, any decision made by a committee of the CCLC pursuant to a delegation of authority may be appealed to the full CCLC. A decision made by the staff of the CCLC pursuant to a delegation of authority may also be reviewed by the full CCLC, but should first be appealed to the Committee of the CCLC having jurisdiction on the subject involved. All appeals shall be in writing. The CCLC has the discretion to, but is not obligated to, grant a hearing in connection with any appeal.
\n(2) Amendments. The CCLC may on its own motion, or on the motion of any interested party, amend, delete, or add to the foregoing Regulations. All motions in this regard should (1) be typed, (2) describe the amendment, (3) explain the reasons for the amendment, and (4) include a draft of the suggested new regulation.
\n(3) All parties are welcomed to appear before the Commission in writing. If the Commission determines that further information is needed, the parties may be invited to present their position or appeal in person or by telephone conference call.
\n(C) Finances:
\n(1) Purpose. The Commission should be adequately funded to enable it to perform its duties in a financially independent manner.
\n(2) Sources. Costs of administration of the Commission shall be derived from charges to members of the State Bar for continuing legal education activities.
\n\n\n(a) Sponsors of CLE programs to be held within the State of Georgia shall, as a condition of accreditation, agree to remit a list of Georgia attendees and to pay a fee for each active State Bar member who attends the program. This sponsor's fee shall be based on each day of attendance, with a proportional fee for programs lasting less than a whole day. The rate shall be set by the Commission.
\n(b) The Commission shall fix a reasonably comparable fee to be paid by individual attorneys who either (a) attend approved CLE programs outside the State of Georgia or (b) attend un-approved CLE programs within the State of Georgia that would have been approved for credit except for the failure of the sponsor to pay the fee described in the preceding paragraph. Such fee shall accompany the attorney's annual report.
\n
(3) Uses. Funds may be expended for the proper administration of the Commission. However, the members of the Commission shall serve on a voluntary basis without expense reimbursement or compensation.
\nRegulations
\n(1) Sponsor Fee. The Sponsor fee, a charge paid directly by the sponsor, is required for all approved programs held within Georgia. It is optional for approved programs held elsewhere. Sponsors shall remit the fee, together with a list in alphabetical order showing the names and Georgia Bar membership numbers of all Georgia attendees, within thirty (30) days after the program is held. The amount of the fee is set at $5.00 per approved CLE hour per active State Bar of Georgia member in attendance. It is computed as shown in the following formula and example:
\n| \n | Formula | \nExample | \n
| Fee | \n$5.00 | \n$5.00 | \n
| Multiplied by total approved CLE hours | \nx ? | \nx 5.4 | \n
| Multiplied by number of Georgia attendees | \nx ? | \nx 129 | \n
| Equals the total sponsor fee | \n$ ? | \n$3483.00 | \n
(2) Attendee Fee. The attendee fee is paid by the Georgia attorney who requests credit for a program for which no sponsor fee was paid. Attorneys should remit the fee along with their annual report before January 31st following the calendar year for which the report is being submitted. The amount of the fee is set at $5.00 per approved CLE hour for which the attorney claims credit. It is computed as shown in the following formula and example:
\n| \n | Formula | \nExample | \n
| Fee | \n$5.00 | \n$5.00 | \n
| Multiplied by the total approved CLE hours for which the attorney seeks credit but for which sponsor fee was paid. | \nx ? | \nx 3.3 | \n
| Equals the total attendee fee | \n$ ? | \n$16.50 | \n
(3) Fee Review. The Commission will review the level of the fee at least annually and adjust it as necessary to maintain adequate finances for prudent operation of the Commission in a non-profit manner.
\n(4) Uniform Application. The fee shall be applied uniformly without exceptions or other preferential treatment for any sponsor or attendee.
\n(5) Professionalism Fee. The charge for professionalism credit is $15.00 per professionalism hour per attendee. This is in addition to the $5.00 per credit hour per attendee required by the CCLC. Each professionalism hour thus carries a charge per attendee of $20.00. The sponsor shall remit payment for CLE credit as follows:
\nA check for $5.00 per total CLE hour (including professionalism) per attendee should be made payable to CCLC and mailed with the attendance list to the CCLC at the State Bar address.
\nA check for $15.00 per professionalism CLE hour per attendee should be made payable to CJCP (Chief Justice's Commission on Professionalism) and mailed to the CJCP at the State Bar address.
\nFor example, if the sponsor is paying for 5 attendees who attended a 6-hour seminar including 1 hour of ethics and 1 hour of professionalism, payment should be as follows:
\n$5 per hour x 6 hours of CLE x 5 attendees = $150 (payable to CCLC)
\n$15 per Professionalism hour x 5 attendees = $75 (payable to CJCP)
\nThe CCLC is responsible for entering all CLE credit including professionalism.
"},{"parentId":226,"version":3,"id":335,"name":"Rule 8-103. Commission on Continuing Lawyer Competency.","bodyText":"(A) Membership, Appointment and Terms:
\nThere is established a permanent commission of the State Bar of Georgia known as the Commission on Continuing Lawyer Competency. The Commission shall consist of sixteen (16) members, six (6) of whom shall be appointed by the Supreme Court of Georgia and six (6) by the Board of Governors of the State Bar of Georgia, one (1) shall be designated by the Executive Committee of the State Bar of Georgia, one (1) shall be the chair of the Board of Trustees of the Institute of Continuing Legal Education in Georgia or his or her designee, one (1) shall be designated by the Chief Justice's Commission on Professionalism, and one (1) shall be designated by the President of the Young Lawyers Division of the State Bar of Georgia. Members shall be members of the State Bar of Georgia. Members of the Commission appointed by the Supreme Court of Georgia and by the Board of Governors of the State Bar shall be appointed for staggered three (3) year terms and until their successors are appointed, except that the initial appointed members of the Commission shall consist of four (4) members appointed for a term of one (1) year, four (4) members appointed for a term of two (2) years, and four (4) members appointed for a term of three (3) years. The appointed members of the initial Commission shall be appointed half by the Supreme Court and half by the Board of Governors of the State Bar of Georgia. No member appointed by the Supreme Court or the Board of Governors may serve more than two (2) consecutive terms as a member of the Commission, and no such member may be reappointed otherwise to the Commission until he or she has been inactive as a Commission member for three (3) consecutive years. Members of the Commission designated by the Executive Committee, the chair of the Board of Trustees of the Institute of Continuing Legal Education, the Chief Justice's Commission on Professionalism, and the President of the Young Lawyers Division shall each serve for a term of one (1) year. No person so designated to the Commission may serve more than three (3) consecutive terms as a member of the Commission, and no such member may be redesignated otherwise to the Commission until he or she has been inactive as a Commission member for three (3) consecutive years.
\nThe Commission shall designate each year one of its members to serve as Chairperson. The Executive Director of the State Bar of Georgia, the Executive Director of the Institute of Continuing Legal Education of Georgia, the Executive Director of the Chief Justice's Commission on Professionalism, and the Executive Director of the Commission shall serve as ex-officio members of the Commission, but shall have no vote. The Executive Director of the Commission shall serve as Secretary of the Commission.
\nRegulations
\n(1) Quorum. Eight voting members shall constitute a quorum of the CCLC.
\n(2) Chair. The Chair of the CCLC shall be elected by majority vote during the first meeting of CCLC in each calendar year.
\n(3) Vice Chair. The CCLC shall elect a Vice Chair by majority vote during the first meeting of the CCLC in each calendar year.
\n(4) Executive Committee. The Executive Committee of the CCLC shall be comprised of the Chairperson, Vice Chairperson, and a voting member to be appointed by the Chairperson. Its purpose is to conduct all necessary business of the CCLC that may arise between meetings of the full Commission. In such matters it shall have complete authority to act for the CCLC.
\n(5) Standards of the Profession Committee. The Chair of the CCLC shall appoint a chair of the Standards of the Profession Committee which shall devise and recommend policy to the Commission for the operation of the Transition Into Law Practice Program. The Standards of the Profession Committee shall be composed of the designee of the Executive Committee of the State Bar of Georgia, the chair of the Board of Trustees of the Institute of Continuing Legal Education in Georgia or his or her designee, the designee of the Chief Justice's Commission on Professionalism, the designee of the President of the Young Lawyers Division of the State Bar of Georgia, and any other member of the State Bar of Georgia appointed to the Standards of the Profession Committee by the Chairperson of the Commission. In addition, the Standards of the Profession Committee of the Commission shall initially be composed of the members of the Standards of the Profession Committee of the State Bar of Georgia, who shall serve at the pleasure of the Chair of the Commission.
\n(6) Other Committees. The Chairperson may appoint from time to time any committees deemed advisable.
\n(7) Vacancy. A vacancy on the CCLC, in its officers, or on its committees, occurring for whatever reason, shall be filled as soon as practical in the same manner as the original holder of the position was selected.
\n(B) Powers and Duties of the Board:
\n(1) The Commission shall have general supervisory authority to administer these Rules.
\n(2) The Commission shall have specific duties and responsibilities:
\n(a) To approve all or portions of individual courses and programs of a sponsor which satisfy the educational requirements of Rule 8-106;
\n(b) To determine the number of credit hours allowed for each course or educational activity;
\n(c) To encourage courses and programs by established organizations, whether offered within or without the State;
\n(d) To educate the public about the legal profession;
\n(e) To adopt rules and regulations not inconsistent with these Rules;
\n(f) To establish an office or offices and to employ such persons as the Commission deems necessary for the proper administration of these Rules and to delegate to them appropriate authority, subject to the review of the Commission;
\n(g) To report at least annually to the State Bar and to the Supreme Court the activities and recommendations of the Commission and the effectiveness of the enforcement of these Rules;
\n(h) To report promptly to the Supreme Court any violation of these Rules.
\nRegulations
\n(1) Appeals. The CCLC is the final authority on all matters entrusted to it under these rules. Therefore, any decision made by a committee of the CCLC pursuant to a delegation of authority may be appealed to the full CCLC. A decision made by the staff of the CCLC pursuant to a delegation of authority may also be reviewed by the full CCLC, but should first be appealed to the Committee of the CCLC having jurisdiction on the subject involved. All appeals shall be in writing. The CCLC has the discretion to, but is not obligated to, grant a hearing in connection with any appeal.
\n(2) Amendments. The CCLC may on its own motion, or on the motion of any interested party, amend, delete, or add to the foregoing Regulations. All motions in this regard should (1) be typed, (2) describe the amendment, (3) explain the reasons for the amendment, and (4) include a draft of the suggested new regulation.
\n(3) All parties are welcomed to appear before the Commission in writing. If the Commission determines that further information is needed, the parties may be invited to present their position or appeal in person or by telephone conference call.
\n(C) Finances:
\n(1) Purpose. The Commission should be adequately funded to enable it to perform its duties in a financially independent manner.
\n(2) Sources. Costs of administration of the Commission shall be derived from charges to members of the State Bar for continuing legal education activities.
\n(a) Sponsors of CLE programs to be held within the State of Georgia shall, as a condition of accreditation, agree to remit a list of Georgia attendees and to pay a fee for each active State Bar member who attends the program. This sponsor's fee shall be based on each day of attendance, with a proportional fee for programs lasting less than a whole day. The rate shall be set by the Commission.
\n(b) The Commission shall fix a reasonably comparable fee to be paid by individual attorneys who either (a) attend approved CLE programs outside the State of Georgia or (b) attend un-approved CLE programs within the State of Georgia that would have been approved for credit except for the failure of the sponsor to pay the fee described in the preceding paragraph. Such fee shall accompany the attorney's annual report.
\n(3) Uses. Funds may be expended for the proper administration of the Commission. However, the members of the Commission shall serve on a voluntary basis without expense reimbursement or compensation.
\nRegulations
\n(1) Sponsor Fee. The sponsor fee, a charge paid directly by the sponsor, is required for all approved programs held within Georgia and for distance learning programs attended by Georgia attorneys. It is optional for approved programs held elsewhere. Sponsors shall remit the fee, together with a list showing the names and Georgia Bar membership numbers of all Georgia attendees, within thirty (30) days after the program is held. For courses held after June 30, 2019, the fee is set at $4.00 per approved CLE hour per active State Bar of Georgia member in attendance. It is computed as shown in the following example:
\n| \n | Example | \n
| Georgia per hour per attendee CLE fee | \n$4.00 | \n
| Multiplied by total approved CLE hours | \nx 3 | \n
| Multiplied by number of Georgia attorney attendees | \nx 10 | \n
| Equals the total sponsor fee due \n | \n $120.00 | \n
\n
(2) Attendee Fee. The attendee fee is paid by the Georgia attorney who requests credit for a program for which no sponsor fee was paid. Attorneys should remit the fee for courses taken in the current year, by March 31 of the following year. For courses held after June 30, 2019, the fee is set at $4.00 per approved CLE hour for which the attorney claims credit. It is computed as shown in the following example:
\n| \n | Example | \n
| Georgia per hour CLE fee | \n$4.00 | \n
| Multiplied by hours taken by attendee | \nx 3 | \n
| Equals the total attendee fee due | \n$12.00 | \n
\n
(3) Fee Review. The Commission will review the level of the fee at least annually and adjust it as necessary to maintain adequate finances for prudent operation of the Commission in a non-profit manner.
\n(4) Uniform Application. The fee shall be applied uniformly without exceptions or other preferential treatment for any sponsor or attendee.
\n(5) Professionalism Fee. Effective July 1, 2018, all active members of the State Bar of Georgia will be assessed a $15 surcharge annually on their dues notice. This surcharge will allow for unlimited professionalism courses taken during that calendar year for CLE credit. The CCLC is responsible for entering all CLE credit including professionalism.
"},{"parentId":227,"version":2,"id":120,"name":"Rule 8-104. Education Requirements and Exemptions.","bodyText":"(A) Minimum Continuing Legal Education Requirement.
\n
\nEach active member shall complete a minimum of twelve (12) hours of actual instruction in an approved continuing legal education activity during each year. If a member completes more than twelve (12) hours in a year, the excess credit may be carried forward and applied to the education requirement for the succeeding year only.
(B) Basic Legal Skills Requirement.
\n\nRegulations(1) Except as set out in subsections (a) and (b) below, any newly admitted active member admitted after June 30, 2005, must complete in the year of his or her admission or in the next calendar year the State Bar of Georgia Transition Into Law Practice Program, and such completion of the Transition Into Law Practice Program shall satisfy the mandatory continuing legal education requirements for such newly admitted active member for both the year of admission and the next succeeding year.
\n\n\n(a) Any newly admitted active member, who has practiced law in another United States jurisdiction other than Georgia for two or more years immediately prior to admission to practice in this state, may be exempted from completing the Transition Into Law Practice Program upon the submission, within three months of admission, of an affidavit to the Commission on Continuing Lawyer Competency. The affidavit shall provide the date or dates of admission in every other state in which the member is admitted to practice and a declaration that the newly admitted member has been actively engaged in the practice of law for two or more years immediately prior to admission in this state. Upon submission of a satisfactory affidavit, the newly admitted active member shall be required to complete the annual twelve hours of instruction in approved continuing legal education activity beginning at the start of the first full calendar year after the date of admission. Any newly admitted active member, who has practiced law in another United State jurisdiction other than Georgia for two or more years immediately prior to admission to practice in this state and who does not timely file the required affidavit, shall be required to complete the Transition Into Law Practice Program as set out above.
\n
\n(b) Any newly admitted active member, who is a judicial law clerk or who begins a clerkship within three months of admission, shall not be subject to the requirement of completing the Transition Into Law Practice Program during the period of the judicial clerkship. Within thirty days of admission to the State Bar or within thirty days of the beginning of the clerkship if said clerkship begins within three months after admission, the member shall provide written notice to the Commission on Continuing Lawyer Competency of the date of entry into the clerkship position. Judicial law clerks are required to complete the annual twelve hours of regular instruction in approved continuing legal education courses beginning at the start of the first full calendar year after the date of admission. Within thirty days of the completion of the clerkship, the member shall provide written notice to the Commission on Continuing Lawyer Competency of the date of such completion. The member must complete, in the year the clerkship was concluded, or the next calendar year, the Georgia Transition Into Law Practice Program. Such completion of the Transition Into Law Practice Program shall satisfy the mandatory continuing legal education requirements for such member for both the year of completion of the clerkship and the next succeeding calendar year.(2) Each active member, except those participating in the Georgia Transition Into Law Practice Program, shall complete a minimum of one (1) hour of continuing legal education during each year in the area of ethics. This hour is to be included in, and not in addition to, the twelve-hour (12) requirement. If a member completes more than one (1) hour in ethics during the calendar year, the excess ethics credit may be carried forward up to a maximum of two (2) hours and applied to the ethics requirement for succeeding years.
\n
\n
\n(3) Each active member, except those participating in the Georgia Transition Into Law Practice Program, shall complete a minimum of one (1) hour of continuing legal education during each year in an activity of any sponsor approved by the Chief Justice's Commission on Professionalism in the area of professionalism. This hour is to be included in, and not in addition to, the twelve-hour (12) requirement. If a member completes more than one (1) hour in professionalism during the calendar year, the excess professionalism credit may be carried forward up to a maximum of two (2) hours and applied to the professionalism requirement for succeeding years.(4) Confidentiality of Proceedings.
\n\n(a) The confidentiality of all inquiries to, decisions of, and proceedings by the Transition Into Law Practice Program shall be respected. No disclosure of said inquiries, decisions and proceedings shall be made in the absence of the agreement of all participating.
\n(b) Except as expressly permitted by these rules, no person connected with the Transitions Into law Practice Program operated under the auspices of the Standards of the Profession Committee of the Commission on Continuing Lawyer Competency shall disclose any information concerning or comments on any proceeding under these rules.
\n(c) The Transition Into Law Practice Program operated under the auspices of the Standards of the Profession Committee of the Commission on Continuing Lawyer Competency may reveal private records when require by law, court rule, or court order.
\n(d) Any records maintained by the Transition Into Law Practice Program operated under the auspices of the Standards of the Profession Committee of the Commission on Continuing Lawyer Competency, as provided herein, shall be available to Counsel for the State Bar only in the event the State Bar or any department thereof receives a discovery request or properly executed subpoena requesting such records.
\n
\n\n(i) Attendance at the Enhanced Bridge-the-Gap program, or the Fundamentals of Law Practice program of the Institute of Continuing Legal Education, or a comparable program approved by the Commission on Continuing Lawyer Competency; and\n
\n(ii) Completion of a Mentoring Plan of Activities and Experiences.
\n(2) Transition Application. Except as set out in Sections (B)(1)(a) and (B)(1)(b) above, the Transition Into Law Practice Program shall be required of all newly admitted active members admitted after June 30, 2005. The ICLE Bridge-the-Gap program shall be required of all newly admitted active members who are admitted prior to July 1, 2005.
\n
\n(3) Legal Ethics. Legal ethics includes instruction on professional responsibility and malpractice. It does not include such topics as attorney fees, client development, law office economics, and practice systems except to the extent that professional responsibility is directly discussed in connection with these topics.
\n
\n(4) Professionalism. The professionalism CLE requirement is distinct from, and in addition to, the ethics CLE requirement. The one-hour professionalism requirement is satisfied only by attending an activity of any sponsor approved by the Chief Justice's Commission on Professionalism in the area of professionalism. Legal ethics sets forth the minimal standards of professional conduct required of a lawyer; professionalism encompasses what is more broadly expected of lawyers to serve both client and public good. Professionalism refers to the intersecting values of competence, civility, integrity, and commitment to the rule of law, justice, and the public good. The general goal of the professionalism CLE requirement is to create a forum in which lawyers, judges, and legal educators can explore and reflect upon the meaning and goals of professionalism in contemporary legal practice. The professionalism CLE sessions should encourage lawyers toward conduct that preserves and strengthens the dignity, honor, and integrity of the legal profession. Professionalism CLE includes, but is not limited to, courses on (a) the duties of lawyers to the systems of justice, courts, public, clients, other lawyers, and the profession, (b) the roles of lawyers as advocates, counselors, negotiators, problem solvers, and consensus builders, (c) various forms of dispute resolution, (d) pro bono service, (e) the concept of a profession, (f) history of the legal profession, (g) comparison of the legal profession in different nations' systems of advocacy, and (h) jurisprudence or philosophy of law.
(5) Deadlines. The normal MCLE deadlines (December 31 and approved deficiency plan extensions) are applicable to the Transition Into Law Practice Program.
\n(6) Appointment of Mentors; Minimum Qualifications.
\n(a) Appointment of Mentors. The Supreme Court of Georgia has the sole authority to appoint Mentors.
\n(b) Nomination of Mentors. The Standards of the Profession Committee may nominate individuals satisfying the Minimum Qualifications to the Supreme Court of Georgia for appointment consideration; provided however, that the Supreme Court of Georgia retains the authority to appoint Mentors upon its own recommendation and/or motion.
\n(c) Minimum Qualifications for Mentors. A volunteer shall meet the following Minimum Qualifications to be eligible for nomination to the Supreme Court of Georgia for appointment as Mentor:
\n(i) Active Status. Be an active member of the State Bar of Georgia, in good standing; and,
\n(ii) 5 Years of Practice. Have been admitted to the practice law for not less than five (5) years; and,
\n(iii) Professional Reputation. Maintain a professional reputation in his or her local legal community for competence, ethical and professional conduct; and,
\n(iv) Disciplinary Action. Never have received the sanction of disbarment or suspension from the practice of law in any jurisdiction, nor have voluntarily surrendered his or her license to practice law for the purpose of disposing with a pending disciplinary proceeding in any jurisdiction. During the ten (10) years preceding the nomination as mentor, the prospective mentor shall not have been otherwise sanctioned by the pertinent entity governing the admission and practice of law in any jurisdiction. The term "sanctioned" means subjected to disciplinary action. (For example, in Georgia, "sanctioned" currently means any of the levels of discipline whether public or confidential listed in State Bar of Georgia Rule 4-102(b) (i.e., Disbarment; Suspension; Public Reprimand; Review Panel Reprimand; Investigative Panel Reprimand; Formal Admonition); Rule 8-107 (C) (i.e., Administrative Suspension for deficiency in continuing legal education hours); or State Bar Bylaws Article I, Section 4, Item 2 (i.e., Failure to Register with State Bar of Georgia within one year upon eligibility)). Nominations of individuals having formal complaint (s) pending before the Supreme Court of Georgia will be deferred until the final disposition of the formal complaint (s); and,
\n(v) Court-ordered Disciplinary Action. During the ten (10) years preceding the nomination as mentor, the prospective mentor shall not have been the subject of a written order issued by a court of competent jurisdiction that prohibits or otherwise limits the prospective mentor from practicing before that court or class of courts. A directive, request or order by a judge of a court requesting or directing that an attorney employed by an agency of government or a legal aid organization who is assigned to handle cases before that judge be transferred or reassigned to other duties or another courtroom does not constitute court-ordered disciplinary action under this part. A prospective mentor who is or has within the preceding ten (10) years been the subject of such a written order may petition the Commission on Continuing Lawyer Competency (the "Commission") for a waiver of this requirement. After review of the facts and circumstances which led to the entry of such order, the Commission may, upon good cause shown, grant such waiver if the prospective mentor is otherwise qualified to be a mentor; and
\n(vi) Professional Liability Insurance or Equivalent. Be covered under a professional liability insurance policy with minimum limits of $250,000.00/$500,000.00, or, if applicable, the equivalent to such coverage through the legal status of his or her employer.
\n(7) Status. While CLE and TILPP mentoring activities may be completed while on inactive status, TILPP completion certification will be issued only after a member changes to active status.
\n(C) Exemptions.
\n
Regulations
\n
\n(1) Inactive. To be fully exempt, the member must be inactive during the entire year. An active attorney who changes to inactive status is not exempt during the year in which the status change occurs. An inactive attorney who changes to active status must comply with the full 12 CLE hour requirement.
\n
\n(2) Undue Hardship. Requests for undue hardship exemptions on physical disability or other grounds may be granted. The CCLC shall review and approve or disapprove such requests on an individual basis.
\n
\n(D) Requirements for Participation in Litigation.
(1) Prior to appearing as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case, any participant in the Transition Into Law Practice Program admitted to practice after June 30, 2005, shall complete the mandatory Advocacy Experiences of the Transition Into Law Practice Program set forth in Regulation (5) hereunder. The mandatory Advocacy Experiences shall be completed as part of the Mentoring Plan of Activities and Experiences, except that up to three (3) of the five (5) mandatory Advocacy Experiences may be obtained after completion of 60% of the credit hours required for law school graduation and prior to admission to practice. At least two (2) of the mandatory Advocacy Experiences must be completed as part of the Mentoring Plan of Activities and Experiences.
\n(2) Each active member who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, shall complete for such year a minimum of three (3) hours of continuing legal education activity in the area of trial practice. A trial practice CLE activity is one exclusively limited to one or more of the following subjects: evidence, civil practice and procedure, criminal practice and procedure, ethics and professionalism in litigation, or trial advocacy. These hours are to be included in, and not in addition to, the 12-hour (twelve) requirement. If a member completes more than three (3) trial practice hours, the excess trial practice credit may be carried forward and applied to the trial practice requirement for the succeeding year only.
\n
\nRegulations
\n
\nTrial MCLE
\n
\n(1) Lead Counsel is defined as the attorney who has primary responsibility for making all professional decisions in the handling of the case.
\n
\n(2) The trial MCLE rule applies to all members who appear as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case. As a segment of the 12-hour (twelve) total MCLE requirement, the MCLE exemptions are applicable to the trial MCLE rule. Likewise, the normal MCLE deadlines (December 31st and approved deficiency plan extensions) are applicable to the trial MCLE rule.
\n(3) Due to the "exclusively limited" requirement, trial CLE must be (a) clearly segregated and identified (b) a minimum of one (1) hour in length, and (c) limited to one or more of the five (5) listed subjects in order to receive trial CLE credit. The "exclusively limited" requirement does not prohibit credit for a seminar that deals with one or more of the subjects stated in the Rule in the context of a particular field of trial practice, such as medical malpractice, personal injury defense, criminal cases, construction law, etc.
\n
\n(4) MCLE transcripts will reflect trial CLE in addition to ethics and total CLE. However, the certification of compliance is made by the members when they make the court appearance described in the Rules. The sanctions for false certification or other non-compliance lie with the Court in which the lawyer appeared and with the State Disciplinary Board of the State Bar of Georgia. If the Commission receives allegations or evidence of a false certification or other non-compliance, a report thereof shall be forwarded to the State Disciplinary Board for any action it deems necessary.
(5) For participants in the Transition Into Law Practice Program who wish to appear as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case, the mentors and beginning lawyers shall devise five (5) mandatory Advocacy Experiences tailored to the practices of the beginning lawyers. The following are examples:
\n\nOther advocacy experiences may be selected by Mentors to comply with Rule 8-104(D)."},{"parentId":227,"version":3,"id":298,"name":"Rule 8-104. Education Requirements and Exemptions.","bodyText":"i. An actual or simulated deposition of a witness or adverse party in a civil action;
\n
\nii. An actual or simulated jury trial in a civil or criminal case in either a state or federal court;
\niii. An actual or simulated nonjury trial or evidentiary hearing in a state or federal court;
\niv. An actual or webcast of an appellate argument in the Supreme Court of Georgia, the Court of Appeals of Georgia, or a United States Circuit Court of Appeals; and
\nv. An actual or simulated mediation.
(A) Minimum Continuing Legal Education Requirement.
\n
\nEach active member shall complete a minimum of twelve (12) hours of actual instruction in an approved continuing legal education activity during each year. If a member completes more than twelve (12) hours in a year, the excess credit may be carried forward and applied to the education requirement for the succeeding year only.
(B) Basic Legal Skills Requirement.
\n(1) Except as set out in subsections (a) and (b) below, any newly admitted active member admitted after June 30, 2005, must complete in the year of his or her admission or in the next calendar year the State Bar of Georgia Transition Into Law Practice Program, and such completion of the Transition Into Law Practice Program shall satisfy the mandatory continuing legal education requirements for such newly admitted active member for both the year of admission and the next succeeding year.
\n(a) Any newly admitted active member, who has practiced law in another United States jurisdiction other than Georgia for two or more years immediately prior to admission to practice in this state, may be exempted from completing the Transition Into Law Practice Program upon the submission, within three months of admission, of an affidavit to the Commission on Continuing Lawyer Competency. The affidavit shall provide the date or dates of admission in every other state in which the member is admitted to practice and a declaration that the newly admitted member has been actively engaged in the practice of law for two or more years immediately prior to admission in this state. Upon submission of a satisfactory affidavit, the newly admitted active member shall be required to complete the annual twelve hours of instruction in approved continuing legal education activity beginning at the start of the first full calendar year after the date of admission. Any newly admitted active member, who has practiced law in another United State jurisdiction other than Georgia for two or more years immediately prior to admission to practice in this state and who does not timely file the required affidavit, shall be required to complete the Transition Into Law Practice Program as set out above.
\n(b) Any newly admitted active member, who is a judicial law clerk or who begins a clerkship within three months of admission, shall not be subject to the requirement of completing the Transition Into Law Practice Program during the period of the judicial clerkship. Within thirty days of admission to the State Bar or within thirty days of the beginning of the clerkship if said clerkship begins within three months after admission, the member shall provide written notice to the Commission on Continuing Lawyer Competency of the date of entry into the clerkship position. Judicial law clerks are required to complete the annual twelve hours of regular instruction in approved continuing legal education courses beginning at the start of the first full calendar year after the date of admission. Within thirty days of the completion of the clerkship, the member shall provide written notice to the Commission on Continuing Lawyer Competency of the date of such completion. The member must complete, in the year the clerkship was concluded, or the next calendar year, the Georgia Transition Into Law Practice Program. Such completion of the Transition Into Law Practice Program shall satisfy the mandatory continuing legal education requirements for such member for both the year of completion of the clerkship and the next succeeding calendar year.
(2) Each active member, except those participating in the Georgia Transition Into Law Practice Program, shall complete a minimum of one (1) hour of continuing legal education during each year in the area of ethics. This hour is to be included in, and not in addition to, the twelve-hour (12) requirement. If a member completes more than one (1) hour in ethics during the calendar year, the excess ethics credit may be carried forward up to a maximum of two (2) hours and applied to the ethics requirement for succeeding years.
\n(3) Each active member, except those participating in the Georgia Transition Into Law Practice Program, shall complete a minimum of one (1) hour of continuing legal education during each year in an activity of any sponsor approved by the Chief Justice's Commission on Professionalism in the area of professionalism. This hour is to be included in, and not in addition to, the twelve-hour (12) requirement. If a member completes more than one (1) hour in professionalism during the calendar year, the excess professionalism credit may be carried forward up to a maximum of two (2) hours and applied to the professionalism requirement for succeeding years.
\n\n
(4) Confidentiality of Proceedings.
\n(a) The confidentiality of all inquiries to, decisions of, and proceedings by the Transition Into Law Practice Program shall be respected. No disclosure of said inquiries, decisions and proceedings shall be made in the absence of the agreement of all participating.
\n(b) Except as expressly permitted by these rules, no person connected with the Transitions Into law Practice Program operated under the auspices of the Standards of the Profession Committee of the Commission on Continuing Lawyer Competency shall disclose any information concerning or comments on any proceeding under these rules.
\n(c) The Transition Into Law Practice Program operated under the auspices of the Standards of the Profession Committee of the Commission on Continuing Lawyer Competency may reveal private records when require by law, court rule, or court order.
\n(d) Any records maintained by the Transition Into Law Practice Program operated under the auspices of the Standards of the Profession Committee of the Commission on Continuing Lawyer Competency, as provided herein, shall be available to Counsel for the State Bar only in the event the State Bar or any department thereof receives a discovery request or properly executed subpoena requesting such records.
\nRegulations
\n
\n(1) Definitions.
\n
\n
\n(2) Transition Application. Except as set out in Sections (B)(1)(a) and (B)(1)(b) above, the Transition Into Law Practice Program shall be required of all newly admitted active members admitted after June 30, 2005. The ICLE Bridge-the-Gap program shall be required of all newly admitted active members who are admitted prior to July 1, 2005.
\n
\n(3) Legal Ethics. Legal ethics refers to the mandatory standards set by the Georgia Rules of Professional Conduct. Ethics programming instructs attorneys on requirements of the rules, provides attorneys with resources to avoid violations and helps attorneys understand how the rules protect the public.
\n
\n(4) Professionalism. The professionalism CLE requirement is distinct from, and in addition to, the ethics CLE requirement. The one-hour professionalism requirement is satisfied only by attending an activity of any sponsor approved by the Chief Justice's Commission on Professionalism in the area of professionalism. Legal ethics sets forth the minimal standards of professional conduct required of a lawyer; professionalism encompasses what is more broadly expected of lawyers to serve both client and public good. Professionalism refers to the intersecting values of competence, civility, integrity, and commitment to the rule of law, justice, and the public good. The general goal of the professionalism CLE requirement is to create a forum in which lawyers, judges, and legal educators can explore and reflect upon the meaning and goals of professionalism in contemporary legal practice. The professionalism CLE sessions should encourage lawyers toward conduct that preserves and strengthens the dignity, honor, and integrity of the legal profession. Professionalism CLE includes, but is not limited to, courses on (a) the duties of lawyers to the systems of justice, courts, public, clients, other lawyers, and the profession, (b) the roles of lawyers as advocates, counselors, negotiators, problem solvers, and consensus builders, (c) various forms of dispute resolution, (d) pro bono service, (e) the concept of a profession, (f) history of the legal profession, (g) comparison of the legal profession in different nations' systems of advocacy, and (h) jurisprudence or philosophy of law.
(5) Deadlines. The normal MCLE deadlines (December 31 and approved deficiency plan extensions) are applicable to the Transition Into Law Practice Program.
\n(6) Appointment of Mentors; Minimum Qualifications.
\n(a) Appointment of Mentors. The Supreme Court of Georgia has the sole authority to appoint Mentors.
\n(b) Nomination of Mentors. The Standards of the Profession Committee may nominate individuals satisfying the Minimum Qualifications to the Supreme Court of Georgia for appointment consideration; provided however, that the Supreme Court of Georgia retains the authority to appoint Mentors upon its own recommendation and/or motion.
\n(c) Minimum Qualifications for Mentors. A volunteer shall meet the following Minimum Qualifications to be eligible for nomination to the Supreme Court of Georgia for appointment as Mentor:
\n(i) Active Status. Be an active member of the State Bar of Georgia, in good standing; and,
\n(ii) 5 Years of Practice. Have been admitted to the practice law for not less than five (5) years; and,
\n(iii) Professional Reputation. Maintain a professional reputation in his or her local legal community for competence, ethical and professional conduct; and,
\n(iv) Disciplinary Action. Never have received the sanction of disbarment or suspension from the practice of law in any jurisdiction, nor have voluntarily surrendered his or her license to practice law for the purpose of disposing with a pending disciplinary proceeding in any jurisdiction. During the ten (10) years preceding the nomination as mentor, the prospective mentor shall not have been otherwise sanctioned by the pertinent entity governing the admission and practice of law in any jurisdiction. The term "sanctioned" means subjected to disciplinary action. (For example, in Georgia, "sanctioned" currently means any of the levels of discipline whether public or confidential listed in State Bar of Georgia Rule 4-102(b) (i.e., Disbarment; Suspension; Public Reprimand; Review Panel Reprimand; Investigative Panel Reprimand; Formal Admonition); Rule 8-107 (C) (i.e., Administrative Suspension for deficiency in continuing legal education hours); or State Bar Bylaws Article I, Section 4, Item 2 (i.e., Failure to Register with State Bar of Georgia within one year upon eligibility)). Nominations of individuals having formal complaint (s) pending before the Supreme Court of Georgia will be deferred until the final disposition of the formal complaint (s); and,
\n(v) Court-ordered Disciplinary Action. During the ten (10) years preceding the nomination as mentor, the prospective mentor shall not have been the subject of a written order issued by a court of competent jurisdiction that prohibits or otherwise limits the prospective mentor from practicing before that court or class of courts. A directive, request or order by a judge of a court requesting or directing that an attorney employed by an agency of government or a legal aid organization who is assigned to handle cases before that judge be transferred or reassigned to other duties or another courtroom does not constitute court-ordered disciplinary action under this part. A prospective mentor who is or has within the preceding ten (10) years been the subject of such a written order may petition the Commission on Continuing Lawyer Competency (the "Commission") for a waiver of this requirement. After review of the facts and circumstances which led to the entry of such order, the Commission may, upon good cause shown, grant such waiver if the prospective mentor is otherwise qualified to be a mentor; and
\n(vi) Professional Liability Insurance or Equivalent. Be covered under a professional liability insurance policy with minimum limits of $250,000.00/$500,000.00, or, if applicable, the equivalent to such coverage through the legal status of his or her employer.
\n\n
(7) Status. While CLE and TILPP mentoring activities may be completed while on inactive status, TILPP completion certification will be issued only after a member changes to active status.
\n(C) Exemptions.
\n
Regulations
\n
\n(1) Inactive. To be fully exempt, the member must be inactive during the entire year. An active attorney who changes to inactive status is not exempt during the year in which the status change occurs. An inactive attorney who changes to active status must comply with the full 12 CLE hour requirement.
\n
\n(2) Undue Hardship. Requests for undue hardship exemptions on physical disability or other grounds may be granted. The CCLC shall review and approve or disapprove such requests on an individual basis.
(3) Active Non-Resident. Active non-Georgia members residing in other mandatory CLE states may satisfy all Georgia requirements by (1) meeting the CLE requirements of the resident state, (2) so reporting annually on their Georgia MCLE Annual Report, and (3) paying the Georgia CLE, professionalism, and late fees normally paid by active members residing in Georgia.
\n(4) Active Military Duty. Active members serving on active duty with the United States Armed Forces shall be exempt from the continuing legal education but not the reporting requirement of this Rule.
\n(D) Requirements for Participation in Litigation.
\n(1) Prior to appearing as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case, any participant in the Transition Into Law Practice Program admitted to practice after June 30, 2005, shall complete the mandatory Advocacy Experiences of the Transition Into Law Practice Program set forth in Regulation (5) hereunder. The mandatory Advocacy Experiences shall be completed as part of the Mentoring Plan of Activities and Experiences, except that up to three (3) of the five (5) mandatory Advocacy Experiences may be obtained after completion of 60% of the credit hours required for law school graduation and prior to admission to practice. At least two (2) of the mandatory Advocacy Experiences must be completed as part of the Mentoring Plan of Activities and Experiences.
\n(2) Each active member who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, shall complete for such year a minimum of three (3) hours of continuing legal education activity in the area of trial practice. A trial practice CLE activity is one exclusively limited to one or more of the following subjects: evidence, civil practice and procedure, criminal practice and procedure, ethics and professionalism in litigation, or trial advocacy. These hours are to be included in, and not in addition to, the 12-hour (twelve) requirement. If a member completes more than three (3) trial practice hours, the excess trial practice credit may be carried forward and applied to the trial practice requirement for the succeeding year only.
\n
\nRegulations
\n
\nTrial MCLE
\n
\n(1) Lead Counsel is defined as the attorney who has primary responsibility for making all professional decisions in the handling of the case.
\n
\n(2) The trial MCLE rule applies to all members who appear as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case. As a segment of the 12-hour (twelve) total MCLE requirement, the MCLE exemptions are applicable to the trial MCLE rule. Likewise, the normal MCLE deadlines (December 31st and approved deficiency plan extensions) are applicable to the trial MCLE rule.
\n(3) Due to the "exclusively limited" requirement, trial CLE must be (a) clearly segregated and identified (b) a minimum of one (1) hour in length, and (c) limited to one or more of the five (5) listed subjects in order to receive trial CLE credit. The "exclusively limited" requirement does not prohibit credit for a seminar that deals with one or more of the subjects stated in the Rule in the context of a particular field of trial practice, such as medical malpractice, personal injury defense, criminal cases, construction law, etc.
\n
\n(4) MCLE transcripts will reflect trial CLE in addition to ethics and total CLE. However, the certification of compliance is made by the members when they make the court appearance described in the Rules. The sanctions for false certification or other non-compliance lie with the Court in which the lawyer appeared and with the State Disciplinary Board of the State Bar of Georgia. If the Commission receives allegations or evidence of a false certification or other non-compliance, a report thereof shall be forwarded to the State Disciplinary Board for any action it deems necessary.
(5) For participants in the Transition Into Law Practice Program who wish to appear as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case, the mentors and beginning lawyers shall devise five (5) mandatory Advocacy Experiences tailored to the practices of the beginning lawyers. The following are examples:
\ni. An actual or simulated deposition of a witness or adverse party in a civil action;
\n
ii. An actual or simulated jury trial in a civil or criminal case in either a state or federal court;
\n
iii. An actual or simulated nonjury trial or evidentiary hearing in a state or federal court;
\n
iv. An actual or webcast of an appellate argument in the Supreme Court of Georgia, the Court of Appeals of Georgia, or a United States Circuit Court of Appeals; and
\n
v. An actual or simulated mediation.
\nOther advocacy experiences may be selected by Mentors to comply with Rule 8-104(D).
"},{"parentId":227,"version":4,"id":327,"name":"Rule 8-104. Education Requirements and Exemptions.","bodyText":"(A) Minimum Continuing Legal Education Requirement.
\n
\nEach active member shall complete a minimum of twelve (12) hours of actual instruction in an approved continuing legal education activity during each year. If a member completes more than twelve (12) hours in a year, the excess credit may be carried forward and applied to the education requirement for the succeeding year only.
(B) Basic Legal Skills Requirement.
\n(1) Except as set out in subsections (a) and (b) below, any newly admitted active member admitted after June 30, 2005, must complete in the year of his or her admission or in the next calendar year the State Bar of Georgia Transition Into Law Practice Program, and such completion of the Transition Into Law Practice Program shall satisfy the mandatory continuing legal education requirements for such newly admitted active member for both the year of admission and the next succeeding year.
\n(a) Any newly admitted active member, who has practiced law in another United States jurisdiction other than Georgia for two or more years immediately prior to admission to practice in this state, may be exempted from completing the Transition Into Law Practice Program upon the submission, within three months of admission, of an affidavit to the Commission on Continuing Lawyer Competency. The affidavit shall provide the date or dates of admission in every other state in which the member is admitted to practice and a declaration that the newly admitted member has been actively engaged in the practice of law for two or more years immediately prior to admission in this state. Upon submission of a satisfactory affidavit, the newly admitted active member shall be required to complete the annual twelve hours of instruction in approved continuing legal education activity beginning at the start of the first full calendar year after the date of admission. Any newly admitted active member, who has practiced law in another United State jurisdiction other than Georgia for two or more years immediately prior to admission to practice in this state and who does not timely file the required affidavit, shall be required to complete the Transition Into Law Practice Program as set out above.
\n(b) Any newly admitted active member, who is a judicial law clerk or who begins a clerkship within three months of admission, shall not be subject to the requirement of completing the Transition Into Law Practice Program during the period of the judicial clerkship. Within thirty days of admission to the State Bar or within thirty days of the beginning of the clerkship if said clerkship begins within three months after admission, the member shall provide written notice to the Commission on Continuing Lawyer Competency of the date of entry into the clerkship position. Judicial law clerks are required to complete the annual twelve hours of regular instruction in approved continuing legal education courses beginning at the start of the first full calendar year after the date of admission. Within thirty days of the completion of the clerkship, the member shall provide written notice to the Commission on Continuing Lawyer Competency of the date of such completion. The member must complete, in the year the clerkship was concluded, or the next calendar year, the Georgia Transition Into Law Practice Program. Such completion of the Transition Into Law Practice Program shall satisfy the mandatory continuing legal education requirements for such member for both the year of completion of the clerkship and the next succeeding calendar year.
(2) Each active member, except those participating in the Georgia Transition Into Law Practice Program, shall complete a minimum of one (1) hour of continuing legal education during each year in the area of ethics. This hour is to be included in, and not in addition to, the twelve-hour (12) requirement. If a member completes more than one (1) hour in ethics during the calendar year, the excess ethics credit may be carried forward up to a maximum of two (2) hours and applied to the ethics requirement for succeeding years.
\n(3) Each active member, except those participating in the Georgia Transition Into Law Practice Program, shall complete a minimum of one (1) hour of continuing legal education during each year in an activity of any sponsor approved by the Chief Justice's Commission on Professionalism in the area of professionalism. This hour is to be included in, and not in addition to, the twelve-hour (12) requirement. If a member completes more than one (1) hour in professionalism during the calendar year, the excess professionalism credit may be carried forward up to a maximum of two (2) hours and applied to the professionalism requirement for succeeding years.
\n\n
(4) Confidentiality of Proceedings.
\n(a) The confidentiality of all inquiries to, decisions of, and proceedings by the Transition Into Law Practice Program shall be respected. No disclosure of said inquiries, decisions and proceedings shall be made in the absence of the agreement of all participating.
\n(b) Except as expressly permitted by these rules, no person connected with the Transitions Into law Practice Program operated under the auspices of the Standards of the Profession Committee of the Commission on Continuing Lawyer Competency shall disclose any information concerning or comments on any proceeding under these rules.
\n(c) The Transition Into Law Practice Program operated under the auspices of the Standards of the Profession Committee of the Commission on Continuing Lawyer Competency may reveal private records when require by law, court rule, or court order.
\n(d) Any records maintained by the Transition Into Law Practice Program operated under the auspices of the Standards of the Profession Committee of the Commission on Continuing Lawyer Competency, as provided herein, shall be available to Counsel for the State Bar only in the event the State Bar or any department thereof receives a discovery request or properly executed subpoena requesting such records.
\nRegulations
\n
\n(1) Definitions.
\n
\n
\n(2) Transition Application. Except as set out in Sections (B)(1)(a) and (B)(1)(b) above, the Transition Into Law Practice Program shall be required of all newly admitted active members admitted after June 30, 2005. The ICLE Bridge-the-Gap program shall be required of all newly admitted active members who are admitted prior to July 1, 2005.
\n
\n(3) Legal Ethics. Legal ethics refers to the mandatory standards set by the Georgia Rules of Professional Conduct. Ethics programming instructs attorneys on requirements of the rules, provides attorneys with resources to avoid violations and helps attorneys understand how the rules protect the public.
\n
\n(4) Professionalism. The professionalism CLE requirement is distinct from, and in addition to, the ethics CLE requirement. The one-hour professionalism requirement is satisfied only by attending an activity of any sponsor approved by the Chief Justice's Commission on Professionalism in the area of professionalism. Legal ethics sets forth the minimal standards of professional conduct required of a lawyer; professionalism encompasses what is more broadly expected of lawyers to serve both client and public good. Professionalism refers to the intersecting values of competence, civility, integrity, and commitment to the rule of law, justice, and the public good. The general goal of the professionalism CLE requirement is to create a forum in which lawyers, judges, and legal educators can explore and reflect upon the meaning and goals of professionalism in contemporary legal practice. The professionalism CLE sessions should encourage lawyers toward conduct that preserves and strengthens the dignity, honor, and integrity of the legal profession. Professionalism CLE includes, but is not limited to, courses on (a) the duties of lawyers to the systems of justice, courts, public, clients, other lawyers, and the profession, (b) the roles of lawyers as advocates, counselors, negotiators, problem solvers, and consensus builders, (c) various forms of dispute resolution, (d) pro bono service, (e) the concept of a profession, (f) history of the legal profession, (g) comparison of the legal profession in different nations' systems of advocacy, and (h) jurisprudence or philosophy of law.
(5) Deadlines. The normal MCLE deadlines (December 31 and approved deficiency plan extensions) are applicable to the Transition Into Law Practice Program.
\n(6) Appointment of Mentors; Minimum Qualifications.
\n(a) Appointment of Mentors. The Supreme Court of Georgia has the sole authority to appoint Mentors.
\n(b) Nomination of Mentors. The Standards of the Profession Committee may nominate individuals satisfying the Minimum Qualifications to the Supreme Court of Georgia for appointment consideration; provided however, that the Supreme Court of Georgia retains the authority to appoint Mentors upon its own recommendation and/or motion.
\n(c) Minimum Qualifications for Mentors. A volunteer shall meet the following Minimum Qualifications to be eligible for nomination to the Supreme Court of Georgia for appointment as Mentor:
\n(i) Active Status. Be an active member of the State Bar of Georgia, in good standing; and,
\n(ii) 5 Years of Practice. Have been admitted to the practice law for not less than five (5) years; and,
\n(iii) Professional Reputation. Maintain a professional reputation in his or her local legal community for competence, ethical and professional conduct; and,
\n(iv) Disciplinary Action. Never have received the sanction of disbarment or suspension from the practice of law in any jurisdiction, nor have voluntarily surrendered his or her license to practice law for the purpose of disposing with a pending disciplinary proceeding in any jurisdiction. During the ten (10) years preceding the nomination as mentor, the prospective mentor shall not have been otherwise sanctioned by the pertinent entity governing the admission and practice of law in any jurisdiction. The term "sanctioned" means subjected to disciplinary action. (For example, in Georgia, "sanctioned" currently means any of the levels of discipline whether public or confidential listed in State Bar of Georgia Rule 4-102(b) (i.e., Disbarment; Suspension; Public Reprimand; State Disciplinary Review Board Reprimand; State Disciplinary Board Reprimand; Formal Admonition); Rule 8-107 (C) (i.e., Administrative Suspension for deficiency in continuing legal education hours); or State Bar Bylaws Article I, Section 4, Item 2 (i.e., Failure to Register with State Bar of Georgia within one year upon eligibility)). Nominations of individuals having formal complaint (s) pending before the Supreme Court of Georgia will be deferred until the final disposition of the formal complaint (s); and,
\n(v) Court-ordered Disciplinary Action. During the ten (10) years preceding the nomination as mentor, the prospective mentor shall not have been the subject of a written order issued by a court of competent jurisdiction that prohibits or otherwise limits the prospective mentor from practicing before that court or class of courts. A directive, request or order by a judge of a court requesting or directing that an attorney employed by an agency of government or a legal aid organization who is assigned to handle cases before that judge be transferred or reassigned to other duties or another courtroom does not constitute court-ordered disciplinary action under this part. A prospective mentor who is or has within the preceding ten (10) years been the subject of such a written order may petition the Commission on Continuing Lawyer Competency (the "Commission") for a waiver of this requirement. After review of the facts and circumstances which led to the entry of such order, the Commission may, upon good cause shown, grant such waiver if the prospective mentor is otherwise qualified to be a mentor; and
\n(vi) Professional Liability Insurance or Equivalent. Be covered under a professional liability insurance policy with minimum limits of $250,000.00/$500,000.00, or, if applicable, the equivalent to such coverage through the legal status of his or her employer.
\n\n
(7) Status. While CLE and TILPP mentoring activities may be completed while on inactive status, TILPP completion certification will be issued only after a member changes to active status.
\n(C) Exemptions.
\n
Regulations
\n
\n(1) Inactive. To be fully exempt, the member must be inactive during the entire year. An active attorney who changes to inactive status is not exempt during the year in which the status change occurs. An inactive attorney who changes to active status must comply with the full 12 CLE hour requirement.
\n
\n(2) Undue Hardship. Requests for undue hardship exemptions on physical disability or other grounds may be granted. The CCLC shall review and approve or disapprove such requests on an individual basis.
(3) Active Non-Resident. Active non-Georgia members residing in other mandatory CLE states may satisfy all Georgia requirements by (1) meeting the CLE requirements of the resident state, (2) so reporting annually on their Georgia MCLE Annual Report, and (3) paying the Georgia CLE, professionalism, and late fees normally paid by active members residing in Georgia.
\n(4) Active Military Duty. Active members serving on active duty with the United States Armed Forces shall be exempt from the continuing legal education but not the reporting requirement of this Rule.
\n(D) Requirements for Participation in Litigation.
\n(1) Prior to appearing as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case, any participant in the Transition Into Law Practice Program admitted to practice after June 30, 2005, shall complete the mandatory Advocacy Experiences of the Transition Into Law Practice Program set forth in Regulation (5) hereunder. The mandatory Advocacy Experiences shall be completed as part of the Mentoring Plan of Activities and Experiences, except that up to three (3) of the five (5) mandatory Advocacy Experiences may be obtained after completion of 60% of the credit hours required for law school graduation and prior to admission to practice. At least two (2) of the mandatory Advocacy Experiences must be completed as part of the Mentoring Plan of Activities and Experiences.
\n(2) Each active member who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, shall complete for such year a minimum of three (3) hours of continuing legal education activity in the area of trial practice. A trial practice CLE activity is one exclusively limited to one or more of the following subjects: evidence, civil practice and procedure, criminal practice and procedure, ethics and professionalism in litigation, or trial advocacy. These hours are to be included in, and not in addition to, the 12-hour (twelve) requirement. If a member completes more than three (3) trial practice hours, the excess trial practice credit may be carried forward and applied to the trial practice requirement for the succeeding year only.
\n
\nRegulations
\n
\nTrial MCLE
\n
\n(1) Lead Counsel is defined as the attorney who has primary responsibility for making all professional decisions in the handling of the case.
\n
\n(2) The trial MCLE rule applies to all members who appear as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case. As a segment of the 12-hour (twelve) total MCLE requirement, the MCLE exemptions are applicable to the trial MCLE rule. Likewise, the normal MCLE deadlines (December 31st and approved deficiency plan extensions) are applicable to the trial MCLE rule.
\n(3) Due to the "exclusively limited" requirement, trial CLE must be (a) clearly segregated and identified (b) a minimum of one (1) hour in length, and (c) limited to one or more of the five (5) listed subjects in order to receive trial CLE credit. The "exclusively limited" requirement does not prohibit credit for a seminar that deals with one or more of the subjects stated in the Rule in the context of a particular field of trial practice, such as medical malpractice, personal injury defense, criminal cases, construction law, etc.
\n
\n(4) MCLE transcripts will reflect trial CLE in addition to ethics and total CLE. However, the certification of compliance is made by the members when they make the court appearance described in the Rules. The sanctions for false certification or other non-compliance lie with the Court in which the lawyer appeared and with the State Disciplinary Board of the State Bar of Georgia. If the Commission receives allegations or evidence of a false certification or other non-compliance, a report thereof shall be forwarded to the State Disciplinary Board for any action it deems necessary.
(5) For participants in the Transition Into Law Practice Program who wish to appear as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case, the mentors and beginning lawyers shall devise five (5) mandatory Advocacy Experiences tailored to the practices of the beginning lawyers. The following are examples:
\ni. An actual or simulated deposition of a witness or adverse party in a civil action;
\n
ii. An actual or simulated jury trial in a civil or criminal case in either a state or federal court;
\n
iii. An actual or simulated nonjury trial or evidentiary hearing in a state or federal court;
\n
iv. An actual or webcast of an appellate argument in the Supreme Court of Georgia, the Court of Appeals of Georgia, or a United States Circuit Court of Appeals; and
\n
v. An actual or simulated mediation.
\nOther advocacy experiences may be selected by Mentors to comply with Rule 8-104(D).
"},{"parentId":230,"version":2,"id":238,"name":"Preamble.","bodyText":"The purpose of the Lawyer Assistance Program is to confidentially identify and assist Bar members who are experiencing problems which negatively impact their quality of life and their ability to function effectively as members of the Bar through education, intervention, peer support and professional clinical treatment.
"},{"parentId":231,"version":2,"id":232,"name":"Rule 8-106. Hours and Accreditation.","bodyText":"(A) Hours. The Commission shall designate the number of hours to be earned by participation, including, but not limited to, teaching in continuing legal education activities approved by the Commission.
\n
\nRegulations
\n
\n(1) Computation Formula. CLE and ethics hours shall be computed by the following formula:
\n
| \n Sum of total minutes \n \n of actual instruction \n 60 | \n \n = total hours (round to the \n \n nearest 1/10th of an hour) | \n
(2) Actual Instruction. Only legal education shall be included in computing the total hours of actual instruction. The following shall not be included: (a) introductory remarks, (b) breaks, (c) business meetings, (d) questions and answer sessions at a ratio in excess of 10 minutes per CLE hour, (e) programs of less than 60 minutes in length.
\n(3) Teaching. For their contribution to the legal profession, attorneys may earn credit for non-paid teaching in an approved continuing legal education activity. Presentations accompanied by thorough, high quality, readable, and carefully prepared written materials will qualify for CLE credit on the basis of three (3) credits for each hour of presentation. Repeat presentations qualify for one-half of the credits available for the initial presentation. A speaker may elect to split the teaching credit with another attorney who, under the speaker's supervision, prepares the written materials. If the intended speaker prepares the written materials and cannot speak due to health problems, emergency or required court appearance, the teaching credit will be split between the speaker and the substituted speaker at the request of either. Should neither make such request, the credit will be given to the actual speaker.
\n(4) Author. The CCLC may award up to a maximum of (6) hours of CLE credit for the authoring of legal articles upon the written certification by the attorney to the CCLC of (a) the amount of time expended in researching and writing the article and (b) the submission of a copy thereof to the CCLC for review, provided that (1) the article or treatise's content and quality are consistent with the purposes of CLE, (2) it is published in a recognized publication which is primarily directed at lawyers, and (3) the project was not done in the ordinary course of the practice of law, the performance of judicial duties, or other regular employment. If co-authors are involved, the credit may be divided on the basis of each attorney's contribution. An attorney requesting author credit shall pay the normal attendee fee.
\n(5) Organizer. The chairperson who organizes an approved CLE activity and who does not make a formal oral presentation therein shall qualify for CLE credit as if he or she had made a one hour presentation. If co-chairpersons are involved, the credit shall be divided on the basis of each attorneys' contribution. An attorney requesting this type of credit should pay, or arrange for the sponsor to pay, the normal attendee fee.
\n(6) Mental Health. Mental health issues, including stress, anxiety, substance abuse, depression and suicide, materially affect lawyers’ competency to practice law and their lives. CLE credit as required under Rule 8-104 (A) is available for seminars on these and similar quality of life topics. In addition, professionalism CLE credit is available when these topics are presented in a professionalism program approved by the Chief Justice’s Commission on Professionalism.
\n(7) Trial Observation. Every trial encompasses many aspects of the practice of law that are consistently taught in both law school and continuing legal education seminars. Observing how this education is applied into actual practice in the form of a current trial is, in and of itself, very educational. Its importance in achieving competency as a lawyer cannot be emphasized enough. To encourage this, CLE credit for observing trials is available under the following guidelines
\na. Jury trials, bench trials, motion hearings and appellate court arguments in any Federal or State court are eligible. Administrative hearings, trials and probate court, and mediations/arbitrations are also eligible.
\nb. Proceedings in magistrate court and pro se matters are not eligible.
\nc. Credit is not available for trials in which the member takes an active role in the trial or any phase thereof.
\nd. The credit shall be treated as In-House and subject to the limitations of Regulation 8e under Rule 8-106 (B).
\ne. The credit is not eligible for ethics or professionalism CLE.
\nf. The credit is self-reported to the CCLC and must include:
\nmember's name and bar number
\nthe name of the court, parties, date of trial and type of trial
\nthe credit applicable (actual time rounded to nearest tenth of an hour)
\nthe administrative fee required by Rule 8-103(C)(2) (currently $5 per credit hour)
\n(8) Active Non-Resident. Active non-Georgia members residing in other mandatory CLE states may satisfy all Georgia requirements by (1) meeting the CLE requirements of the resident state, (2) so reporting annually on their Georgia MCLE affidavit, and (3) paying the Georgia CLE, professionalism, and late fees normally paid by active members residing in Georgia.
\n(9) Active Military Duty. Active members serving on active duty with the United States Armed Forces shall be exempt from the continuing legal education but not the reporting requirement of this Rule.
\n(B) Accreditation Standards: The Commission shall approve continuing legal education activities consistent with the following standards:
\n(1) They shall have significant intellectual or practical content, and the primary objective shall be to increase the participant's professional competence as a lawyer;
\n
\n(2) They shall constitute an organized program of learning dealing with matters directly related to the practice of law, professional responsibility or ethical obligations of lawyers;
\n
\n(3) Credit may be given for continuing legal education activities where (a) live instruction is used or (b) mechanically or electronically recorded or reproduced material is used if a qualified instructor is available to comment and answer questions;
\n
\n(4) Continuing legal education materials are to be prepared, and activities conducted, by an individual or group qualified by practical or academic experience in a setting physically suitable to the educational activity of the program;
\n
\n(5) Thorough, high quality, and carefully prepared written materials should be distributed to all attendees at or before the time the course is presented. It is recognized that written materials are not suitable or readily available for some types of subjects; the absence of written materials for distribution, should, however, be the exception and not the rule;
\n
\n(6) The Commission may issue from time to time a list of approved accredited sponsors deemed by it to meet the requirements set forth in this Rule. Any other sponsor desiring to be approved for accredited sponsor status must file an application with the Commission with such program material and information as the Commission may require;
\n
\n(7) Any accredited sponsor must keep and maintain attendance records of each continuing legal education program sponsored by it, which shall be furnished to the Commission upon its request.
Regulations
\n(1) Continuing Legal Education. The CCLC shall determine those matters which directly relate to the practice of law so as to be eligible for CLE credit. They shall constitute an organized program of learning dealing with matters directly related to the practice of law, professional responsibility, or ethical obligations of lawyers.
\n(2) Law School Courses. Courses offered by an ABA accredited law school shall receive credit on the basis of one-half (1/2) hour of CLE credit for each 60 minutes of actual instruction. No more than twenty-four (24) CLE hours in any calendar year may be earned by law school courses. Success on an examination is not required for credit and the course may be attended on an audit (not for academic credit) basis. No credit is available for law school courses attended prior to becoming an active member of the State Bar of Georgia. Law courses in schools other than law schools will not qualify.
\n(3) Bar Review/Refresher Course. Courses designed to review or refresh recent law school graduates or other attorneys in preparation for any bar exam shall not be approved for CLE credit.
\n(4) Approval. CLE activities may be approved upon the written application of sponsors on an individual program basis, sponsors on an accredited sponsor basis, or attorneys on an individual program basis. In addition, the CCLC may approve both CLE activities and accredited sponsors on its own motion, on either an individual program or accredited sponsor basis. All applications for CLE course approval shall:
\na. Be submitted at least thirty (30) days, and preferably longer, in advance of the course, although the CCLC may grant retroactive approval;
\n
\nb. Be submitted on forms furnished by the CCLC;
\n
\nc. Contain all information requested on the form;
\n
\nd. Be accompanied by a course outline or brochure that describes the course content, identifies the teachers, lists the time devoted to each topic, and shows each date and location at which the program will be offered;
\n
\ne. Include a detailed calculation of the total CLE hours and of the ethics hours.
In addition to the foregoing, sponsors shall within thirty (30) days after the course is concluded:
\na. Furnish to the CCLC a list in alphabetical order of the name and State Bar number of each Georgia attendee;
\n
\nb. Remit to the CCLC the appropriate sponsor fee. Sponsors who have advance approval for courses may include in their brochures or other course descriptions the information contained in the following illustration:
This course (or seminar, etc.) has been approved by the Commission on Continuing Lawyer Competency of the State Bar of Georgia for mandatory continuing legal education credit in the amount of _____hours, of which ______hours will also apply in the area of ethics. The reporting of your attendance at this course will be done for you by (name of sponsor). To assure proper credit, please be sure to furnish us with your correct Georgia Bar number. (If applicable: The administrative fee for this course will be paid for you by (name of sponsor) directly to the Commission.)
\nSponsors not having advance approval shall make no representation concerning the approval of a course for CLE credit by the CCLC.
\n
\nThe CCLC will mail a notice of its decision on all CLE activity approval requests within ninety days of their receipt. Approval thereof will be deemed if the notice is not timely mailed. This automatic approval will not operate if the sponsor contributes to the delay by failing to provide the complete information requested by the CCLC, or if the CCLC timely notifies the sponsor that the matter has been tabled and the reason therefore.
(5) Approval of Accredited Sponsors. CCLC may, at its sole discretion, approve the accredited sponsors. Accredited sponsors shall
\na. Complete such application as the CCLC requires;
\nb. Comply with all the CLE rules and regulations, including any amendments thereto;
\nc. Upon request by the CCLC, submit, on forms to be furnished by the CCLC, all future CLE activities for confirmation of the approved total number of CLE hours, ethics hours, trial hours and professionalism hours
\nd. Conduct all CLE activities substantially as advertised and represented to the CCLC;
\ne. Furnish to the CCLC, within 30 days after each CLE activity, the following:
\ni. A list of the name and State Bar membership number of each Georgia attendee; and
\nii. The required sponsor fee for the CLE activity;
\nf. Allow in-person observation of all CLE activities by the Justices of the Supreme Court, officers of the State Bar of Georgia, members of the Overview Committee, members of the CCLC and the CCLC staff;
\ng. Comply with any and all requirements or representations which may be contained in any form required by the CCLC for the confirmation of the number of approved hours, and
\nh. Submit such other forms as the CCLC may from time to time require, and reply to any and all inquiries from the CCLC.
\n(6) Restrictions on Accredited Sponsors. Accredited sponsors shall not use any name which may cause confusion with the State Bar or any of its entities or with the Commission on Continuing Lawyer Competency, or with ICLE in Georgia. At the sole discretion of the CCLC, an accredited sponsor may be required to place a disclaimer upon any communication with members of the State Bar which disclaims the accredited sponsor from any connection with the State Bar or CCLC. Such disclaimer, if required, shall be approved by the CCLC. An accredited sponsor shall not link to any web page on the State Bar of Georgia without the written approval of the State Bar of Georgia and subject to any requirements and restriction that may be placed upon such approval.
\n(7) Revocation of Accredited Sponsor Status. The CCLC may, with or without cause, at its sole discretion, revoke the accredited sponsor status of any CLE provider.
\n
\n(8) In-House/Self-Study CLE. The Commission recognizes that law firms, corporate legal departments and similar entities, either alone or in conjunction with each other, will develop and present In-House continuing legal education activities to assist their member attorneys in maintaining their professional competence. The Commission further recognizes that these In-House CLE activities often are designed to address matters most relevant to a firm's own attorneys. However, it is also educational and beneficial for attorneys to meet and learn from colleagues who practice in other firms, corporate legal departments, or similar entities including sole practitioners.
The Commission recognizes that active member attorneys on an individual basis may participate in distance learning CLE activities, which constitutes Self-Study.
\nThese In-House/Self-Study CLE activities may be approved for credit under these Rules and Regulations plus the following additional conditions:
\n
a. All In-House/Self-Study CLE activities shall be designed specifically as an organized program of learning.
\n
\nb. All In-House/Self-Study CLE activities must be open to observation by members of the CCLC and its staff;
\n
\nc. Experienced attorneys must substantially contribute to the development and presentation of all In-House/Self-Study CLE activities;
\n
\nd. In-House/Self-Study CLE activities must be scheduled at a time and location so as to be free of interruptions from telephone calls and other office matters.
\n
\ne. Up to six (6) CLE hours may be earned by an attorney in a calendar year through any combination of approved In-House/Self-Study activities. In addition, up to six hours of In-House/Self-Study credit may be carried forward and applied to In-House/Self-Study CLE for the next calendar year or carried back to the previous year to satisfy a CLE deficiency as long as the In-House/Self-Study limit for that year has not been met. While In-House credits count toward this six (6) CLE hour annual limit for all members of the sponsoring law firm or legal department, non-member attorneys who attend those In-House CLE programs will receive regular credit that does not count toward the six (6) CLE hour annual limit. For example, if a law firm conducts a seminar attended both by its partners or associates and by in-house counsel of its corporate client or other invited attorney guests, these credits would count toward the six (6) hour limit for the firm's partners and associates, but not for the non-member guests.
(9) Facilities. Sponsors ordinarily must provide a facility with adequate lighting, temperature controlled ventilation, and a designated non-smoking area. For a non-clinical CLE activity, the facility should be set up in classroom or similar style to provide a writing surface for each pre-registered attendee, to provide a minimum of two linear feet of table space per chair, and should provide sufficient space behind the chairs in each row to permit easy access and exit to each seat. Crowding in the facility detracts from the learning process and will not be permitted.
\n(10) Written Materials. Qualifying written materials shall specifically address each of the topics of the seminar. These materials must be prepared by the speaker (or someone acting under his or her direct supervision) and shall be distributed to all attendees at or before the time the seminar is held. There are essentially three rationales for these requirements. First, they ensure speaker organization and preparation. Second, they alleviate the need for attendees to take notes and allow them to concentrate on the oral presentations. Finally, they provide a valuable reference tool for the attendees after they leave the seminar.
\nExamples of written materials which alone would not qualify include, but are not limited to, the following: (1) topical outlines; (2) topical outlines with case citations; (3) copies of statutes or cases; (4) copies of leases, contracts, wills and other legal instruments (unless accompanied by qualifying explanatory text); (5) hornbooks (unless speaker prepared and on point); (6) casebooks; (7) subsequently prepared transcripts.
\nThe quality of oral presentations and the overall educational value of the seminar will not excuse the written materials accreditation requirement.
\nIt is recognized that on rare occasions, or for unique topics, preparation of written materials may not be possible or appropriate. Thus, for example, where the particular law which is the topic of a seminar changes dramatically immediately before the seminar is given, the prepared materials may be rendered obsolete. Likewise, written materials may not always be suitable for a clinical program on oral advocacy. In these exceptional circumstances, the requirements of this regulation may not apply. If there is any question as to whether written materials are required for a given topic, the sponsor is advised to contact the Commission in advance of the seminar.
\n(11) Sponsor Records. In addition to the required attendance records, sponsors are encouraged, though not required, to solicit written evaluations of each sponsored program from its attendees and to maintain for at least two years after the program all such evaluations received, both for the sponsor's benefit and for furnishing to the Commission upon its request. A sponsor's policy either to solicit and maintain such evaluations or not to do so may be considered by the Commission as a factor bearing on the sponsor's accreditation.
\n(12) Primary Objective Test.The primary objective of CLE shall be to increase the attendee's professional competence as a lawyer. Worthwhile professional activities which have other primary objectives are encouraged, but do not meet the accreditation standards for CLE credit. Bar meetings, service on committees, jury duty, and client development or marketing seminars are examples of activities which do not meet the primary objective test.
\n(13) ADR CLE. CLE activities which train attorneys in the generally accepted processes of alternative dispute resolution are consistent with Accreditation Standards 1 and 2 where such programs meet the other criteria set forth herein
\n(14) Practice Management CLE. (CLE activities relating to the development and management of a law practice including client relations) Practice Management CLE includes, but is not limited to, those activities which (1) teach lawyers how to organize and manage their law practices so as to promote the efficient, economical and competent delivery of legal services; and (2) teach lawyers how to create and maintain good client relations consistent with existing ethical and professional guidelines so as to eliminate malpractice claims and bar grievances while improving service to the client and the public image of the profession. Practice Management CLE is consistent with Accreditation Standards 1 and 2 where such programs meet the other criteria set forth herein.
\n(15) CLE Delivery Formats. In addition to traditional approved continuing legal education activities attended live and in-person by groups of attorneys, distance learning delivery formats are acceptable provided they are designed specifically as organized programs of learning and meet the other accreditation standards set out in these Rules and Regulations. These distance learning CLE activities may be attended by an individual attorney with no minimum number of attendees needed to receive approved MCLE credit, but must comply with the In-House/Self-Study CLE Regulation 8 to Rule 8-106(B). Examples of qualifying distance learning formats include: live CLE activities presented via video or audio replays of live CLE activities; on-line computer CLE activities, CD-ROM and DVD interactive CLE activities; and written correspondence CLE courses. When attended by an individual attorney, the distance learning activity constitutes Self-Study CLE. Examples of non-qualifying educational activities that are encouraged on a non-MCLE approved credit basis include: reading cases and advance sheets, legal research, internet chat groups and jury duty.
"},{"parentId":231,"version":3,"id":284,"name":"Rule 8-106. Hours and Accreditation.","bodyText":"(A) Hours. The Commission shall designate the number of hours to be earned by participation, including, but not limited to, teaching in continuing legal education activities approved by the Commission.
\n
\nRegulations
\n
\n(1) Computation Formula. CLE hours shall be computed by the following formula:
\n
| \n Sum of total minutes \n \n of actual instruction \n 60 | \n \n = CLE hours (round down to \n \n nearest half hour) | \n
(2) Actual Instruction. Only legal education shall be included in computing the total hours of actual instruction. The following shall not be included: (a) introductory remarks, (b) breaks, (c) business meetings, (d) questions and answer sessions at a ratio in excess of 10 minutes per CLE hour, (e) programs of less than 60 minutes in length.
\n(3) Teaching. For their contribution to the legal profession, attorneys may earn credit for non-paid teaching in an approved continuing legal education activity. Presentations accompanied by thorough, high quality, readable, and carefully prepared written materials will qualify for CLE credit on the basis of three (3) credits for each hour of presentation. Repeat presentations qualify for one-half of the credits available for the initial presentation. A speaker may elect to split the teaching credit with another attorney who, under the speaker's supervision, prepares the written materials. If the intended speaker prepares the written materials and cannot speak due to health problems, emergency or required court appearance, the teaching credit will be split between the speaker and the substituted speaker at the request of either. Should neither make such request, the credit will be given to the actual speaker.
\n(4) Author. The CCLC may award up to a maximum of (6) hours of CLE credit for the authoring of legal articles upon the written certification by the attorney to the CCLC of (a) the amount of time expended in researching and writing the article and (b) the submission of a copy thereof to the CCLC for review, provided that (1) the article or treatise's content and quality are consistent with the purposes of CLE, (2) it is published in a recognized publication which is primarily directed at lawyers, and (3) the project was not done in the ordinary course of the practice of law, the performance of judicial duties, or other regular employment. If co-authors are involved, the credit may be divided on the basis of each attorney's contribution. An attorney requesting author credit shall pay the normal attendee fee.
\n(5) Organizer. The chairperson who organizes an approved CLE activity and who does not make a formal oral presentation therein shall qualify for CLE credit as if he or she had made a one hour presentation. If co-chairpersons are involved, the credit shall be divided on the basis of each attorneys' contribution. An attorney requesting this type of credit should pay, or arrange for the sponsor to pay, the normal attendee fee.
\n(6) Lawyer Wellness. Wellness and mental health issues, including stress, anxiety, substance abuse, depression and suicide, materially affect lawyers’ competency to practice law and their lives. CLE credit as required under Rule 8-104(A) is available for seminars on these and similar quality of life and law practice topics. To receive CLE credit these wellness topics must be discussed in the context of the legal profession and the effects on the quality of the legal services the lawyer is able to provide. Presentations approved may include stress management in the context of work/life balance in the practice of law, signs of substance abuse or mental health issues in oneself or a colleague within the legal community, lawyer assistance programs and other topics that are focused on the impact of substance abuse, mental health issues or stress management on lawyers and judges. CLE credit will not be given to presentations which solely focus on personal stress reduction techniques such as breathing exercises, meditation and yoga. In addition, professionalism CLE credit is available when these topics are presented in a professionalism program approved by the Chief Justice’s Commission on Professionalism.
\n(7) Trial Observation. Every trial encompasses many aspects of the practice of law that are consistently taught in both law school and continuing legal education seminars. Observing how this education is applied into actual practice in the form of a current trial is, in and of itself, very educational. Its importance in achieving competency as a lawyer cannot be emphasized enough. To encourage this, CLE credit for observing trials is available under the following guidelines
\na. Jury trials, bench trials, motion hearings and appellate court arguments in any Federal or State court are eligible. Administrative hearings, trials and probate court, and mediations/arbitrations are also eligible.
\nb. Proceedings in magistrate court and pro se matters are not eligible.
\nc. Credit is not available for trials in which the member takes an active role in the trial or any phase thereof.
\nd. The credit shall be treated as In-House and subject to the limitations of Regulation 8e under Rule 8-106 (B).
\ne. The credit is not eligible for ethics or professionalism CLE.
\nf. The credit is self-reported to the CCLC and must include:
\nmember's name and bar number
\nthe name of the court, parties, date of trial and type of trial
\nthe credit applicable (actual time rounded to nearest tenth of an hour)
\nthe administrative fee required by Rule 8-103(C)(2) (currently $5 per credit hour)
\n(B) Accreditation Standards: The Commission shall approve continuing legal education activities consistent with the following standards:
\n(1) They shall have significant intellectual or practical content, and the primary objective shall be to increase the participant's professional competence as a lawyer;
\n
\n(2) They shall constitute an organized program of learning dealing with matters directly related to the practice of law, professional responsibility or ethical obligations of lawyers;
\n
\n(3) Credit may be given for continuing legal education activities where (a) live instruction is used or (b) mechanically or electronically recorded or reproduced material is used if a qualified instructor is available to comment and answer questions;
\n
\n(4) Continuing legal education materials are to be prepared, and activities conducted, by an individual or group qualified by practical or academic experience in a setting physically suitable to the educational activity of the program;
\n
\n(5) Thorough, high quality, and carefully prepared written materials should be distributed to all attendees at or before the time the course is presented. It is recognized that written materials are not suitable or readily available for some types of subjects; the absence of written materials for distribution, should, however, be the exception and not the rule;
\n
\n(6) The Commission may issue from time to time a list of approved accredited sponsors deemed by it to meet the requirements set forth in this Rule. Any other sponsor desiring to be approved for accredited sponsor status must file an application with the Commission with such program material and information as the Commission may require;
\n
\n(7) Any accredited sponsor must keep and maintain attendance records of each continuing legal education program sponsored by it, which shall be furnished to the Commission upon its request.
Regulations
\n(1) Continuing Legal Education. The CCLC shall determine those matters which directly relate to the practice of law so as to be eligible for CLE credit. They shall constitute an organized program of learning dealing with matters directly related to the practice of law, professional responsibility, or ethical obligations of lawyers.
\n(2) Law School Courses. Courses offered by an ABA accredited law school shall receive credit on the basis of one-half (1/2) hour of CLE credit for each 60 minutes of actual instruction. No more than twenty-four (24) CLE hours in any calendar year may be earned by law school courses. Success on an examination is not required for credit and the course may be attended on an audit (not for academic credit) basis. No credit is available for law school courses attended prior to becoming an active member of the State Bar of Georgia. Law courses in schools other than law schools will not qualify.
\n(3) Bar Review/Refresher Course. Courses designed to review or refresh recent law school graduates or other attorneys in preparation for any bar exam shall not be approved for CLE credit.
\n(4) Approval. CLE activities may be approved upon the written application of sponsors on an individual program basis, sponsors on an accredited sponsor basis, or attorneys on an individual program basis. In addition, the CCLC may approve both CLE activities and accredited sponsors on its own motion, on either an individual program or accredited sponsor basis. All applications for CLE course approval shall:
\na. Be submitted at least thirty (30) days, and preferably longer, in advance of the course, although the CCLC may grant retroactive approval;
\n
\nb. Be submitted on forms furnished by the CCLC;
\n
\nc. Contain all information requested on the form;
\n
\nd. Be accompanied by a course outline or brochure that describes the course content, identifies the teachers, lists the time devoted to each topic, and shows each date and location at which the program will be offered;
\n
\ne. Include a detailed calculation of the total CLE hours and of the ethics hours.
In addition to the foregoing, sponsors shall within thirty (30) days after the course is concluded:
\na. Furnish to the CCLC a list in alphabetical order of the name and State Bar number of each Georgia attendee;
\n
\nb. Remit to the CCLC the appropriate sponsor fee. Sponsors who have advance approval for courses may include in their brochures or other course descriptions the information contained in the following illustration:
This course (or seminar, etc.) has been approved by the Commission on Continuing Lawyer Competency of the State Bar of Georgia for mandatory continuing legal education credit in the amount of _____hours, of which ______hours will also apply in the area of ethics. The reporting of your attendance at this course will be done for you by (name of sponsor). To assure proper credit, please be sure to furnish us with your correct Georgia Bar number. (If applicable: The administrative fee for this course will be paid for you by (name of sponsor) directly to the Commission.)
\nSponsors not having advance approval shall make no representation concerning the approval of a course for CLE credit by the CCLC.
\n
\nThe CCLC will mail a notice of its decision on all CLE activity approval requests within ninety days of their receipt. Approval thereof will be deemed if the notice is not timely mailed. This automatic approval will not operate if the sponsor contributes to the delay by failing to provide the complete information requested by the CCLC, or if the CCLC timely notifies the sponsor that the matter has been tabled and the reason therefore.
(5) Approval of Accredited Sponsors. CCLC may, at its sole discretion, approve the accredited sponsors. Accredited sponsors shall
\na. Complete such application as the CCLC requires;
\nb. Comply with all the CLE rules and regulations, including any amendments thereto;
\nc. Upon request by the CCLC, submit, on forms to be furnished by the CCLC, all future CLE activities for confirmation of the approved total number of CLE hours, ethics hours, trial hours and professionalism hours
\nd. Conduct all CLE activities substantially as advertised and represented to the CCLC;
\ne. Furnish to the CCLC, within 30 days after each CLE activity, the following:
\ni. A list of the name and State Bar membership number of each Georgia attendee; and
\nii. The required sponsor fee for the CLE activity;
\nf. Allow in-person observation of all CLE activities by the Justices of the Supreme Court, officers of the State Bar of Georgia, members of the Overview Committee, members of the CCLC and the CCLC staff;
\ng. Comply with any and all requirements or representations which may be contained in any form required by the CCLC for the confirmation of the number of approved hours, and
\nh. Submit such other forms as the CCLC may from time to time require, and reply to any and all inquiries from the CCLC.
\n(6) Restrictions on Accredited Sponsors. Accredited sponsors shall not use any name which may cause confusion with the State Bar or any of its entities or with the Commission on Continuing Lawyer Competency, or with ICLE in Georgia. At the sole discretion of the CCLC, an accredited sponsor may be required to place a disclaimer upon any communication with members of the State Bar which disclaims the accredited sponsor from any connection with the State Bar or CCLC. Such disclaimer, if required, shall be approved by the CCLC. An accredited sponsor shall not link to any web page on the State Bar of Georgia without the written approval of the State Bar of Georgia and subject to any requirements and restriction that may be placed upon such approval.
\n(7) Revocation of Accredited Sponsor Status. The CCLC may, with or without cause, at its sole discretion, revoke the accredited sponsor status of any CLE provider.
\n
\n(8) In-House/Self-Study CLE. The Commission recognizes that law firms, corporate legal departments and similar entities, either alone or in conjunction with each other, will develop and present In-House continuing legal education activities to assist their member attorneys in maintaining their professional competence. The Commission further recognizes that these In-House CLE activities often are designed to address matters most relevant to a firm's own attorneys. However, it is also educational and beneficial for attorneys to meet and learn from colleagues who practice in other firms, corporate legal departments, or similar entities including sole practitioners.
The Commission recognizes that active member attorneys on an individual basis may participate in distance learning CLE activities, which constitutes Self-Study.
\nThese In-House/Self-Study CLE activities may be approved for credit under these Rules and Regulations plus the following additional conditions:
\n
a. All In-House/Self-Study CLE activities shall be designed specifically as an organized program of learning.
\n
\nb. All In-House/Self-Study CLE activities must be open to observation by members of the CCLC and its staff;
\n
\nc. Experienced attorneys must substantially contribute to the development and presentation of all In-House/Self-Study CLE activities;
\n
\nd. In-House/Self-Study CLE activities must be scheduled at a time and location so as to be free of interruptions from telephone calls and other office matters.
\n
\ne. Up to six (6) CLE hours may be earned by an attorney in a calendar year through any combination of approved In-House/Self-Study activities. In addition, up to six hours of In-House/Self-Study credit may be carried forward and applied to In-House/Self-Study CLE for the next calendar year or carried back to the previous year to satisfy a CLE deficiency as long as the In-House/Self-Study limit for that year has not been met. While In-House credits count toward this six (6) CLE hour annual limit for all members of the sponsoring law firm or legal department, non-member attorneys who attend those In-House CLE programs will receive regular credit that does not count toward the six (6) CLE hour annual limit. For example, if a law firm conducts a seminar attended both by its partners or associates and by in-house counsel of its corporate client or other invited attorney guests, these credits would count toward the six (6) hour limit for the firm's partners and associates, but not for the non-member guests.
(9) Facilities. Sponsors ordinarily must provide a facility with adequate lighting, temperature controlled ventilation, and a designated non-smoking area. For a non-clinical CLE activity, the facility should be set up in classroom or similar style to provide a writing surface for each pre-registered attendee, to provide a minimum of two linear feet of table space per chair, and should provide sufficient space behind the chairs in each row to permit easy access and exit to each seat. Crowding in the facility detracts from the learning process and will not be permitted.
\n(10) Written Materials. Qualifying written materials shall specifically address each of the topics of the seminar. These materials must be prepared by the speaker (or someone acting under his or her direct supervision) and shall be distributed to all attendees at or before the time the seminar is held. There are essentially three rationales for these requirements. First, they ensure speaker organization and preparation. Second, they alleviate the need for attendees to take notes and allow them to concentrate on the oral presentations. Finally, they provide a valuable reference tool for the attendees after they leave the seminar.
\nExamples of written materials which alone would not qualify include, but are not limited to, the following: (1) topical outlines; (2) topical outlines with case citations; (3) copies of statutes or cases; (4) copies of leases, contracts, wills and other legal instruments (unless accompanied by qualifying explanatory text); (5) hornbooks (unless speaker prepared and on point); (6) casebooks; (7) subsequently prepared transcripts.
\nThe quality of oral presentations and the overall educational value of the seminar will not excuse the written materials accreditation requirement.
\nIt is recognized that on rare occasions, or for unique topics, preparation of written materials may not be possible or appropriate. Thus, for example, where the particular law which is the topic of a seminar changes dramatically immediately before the seminar is given, the prepared materials may be rendered obsolete. Likewise, written materials may not always be suitable for a clinical program on oral advocacy. In these exceptional circumstances, the requirements of this regulation may not apply. If there is any question as to whether written materials are required for a given topic, the sponsor is advised to contact the Commission in advance of the seminar.
\n(11) Sponsor Records. In addition to the required attendance records, sponsors are encouraged, though not required, to solicit written evaluations of each sponsored program from its attendees and to maintain for at least two years after the program all such evaluations received, both for the sponsor's benefit and for furnishing to the Commission upon its request. A sponsor's policy either to solicit and maintain such evaluations or not to do so may be considered by the Commission as a factor bearing on the sponsor's accreditation.
\n(12) Primary Objective Test.The primary objective of CLE shall be to increase the attendee's professional competence as a lawyer. Worthwhile professional activities which have other primary objectives are encouraged, but do not meet the accreditation standards for CLE credit. Bar meetings, service on committees, jury duty, and client development or marketing seminars are examples of activities which do not meet the primary objective test.
\n(13) ADR CLE. CLE activities which train attorneys in the generally accepted processes of alternative dispute resolution are consistent with Accreditation Standards 1 and 2 where such programs meet the other criteria set forth herein
\n(14) Practice Management CLE. (CLE activities relating to the development and management of a law practice including client relations) Practice Management CLE includes, but is not limited to, those activities which (1) teach lawyers how to organize and manage their law practices so as to promote the efficient, economical and competent delivery of legal services; and (2) teach lawyers how to create and maintain good client relations consistent with existing ethical and professional guidelines so as to eliminate malpractice claims and bar grievances while improving service to the client and the public image of the profession. Practice Management CLE is consistent with Accreditation Standards 1 and 2 where such programs meet the other criteria set forth herein.
\n(15) CLE Delivery Formats. In addition to traditional approved continuing legal education activities attended live and in-person by groups of attorneys, distance learning delivery formats are acceptable provided they are designed specifically as organized programs of learning and meet the other accreditation standards set out in these Rules and Regulations. These distance learning CLE activities may be attended by an individual attorney with no minimum number of attendees needed to receive approved MCLE credit, but must comply with the In-House/Self-Study CLE Regulation 8 to Rule 8-106(B). Examples of qualifying distance learning formats include: live CLE activities presented via video or audio replays of live CLE activities; on-line computer CLE activities, CD-ROM and DVD interactive CLE activities; and written correspondence CLE courses. When attended by an individual attorney, the distance learning activity constitutes Self-Study CLE. Examples of non-qualifying educational activities that are encouraged on a non-MCLE approved credit basis include: reading cases and advance sheets, legal research, internet chat groups and jury duty.
"},{"parentId":231,"version":4,"id":333,"name":"Rule 8-106. Hours and Accreditation.","bodyText":"(A) Hours. The Commission shall designate the number of hours to be earned by participation, including, but not limited to, teaching in continuing legal education activities approved by the Commission.
\n
\nRegulations
\n
\n(1) Computation Formula. CLE hours shall be computed by the following formula:
\n
| \n Sum of total minutes \n \n of actual instruction \n 60 | \n \n = CLE hours (round down to \n \n nearest half hour) | \n
(2) Actual Instruction. Only legal education shall be included in computing the total hours of actual instruction. The following shall not be included: (a) introductory remarks, (b) breaks, (c) business meetings, (d) questions and answer sessions at a ratio in excess of 10 minutes per CLE hour, (e) programs of less than 60 minutes in length.
\n(3) Teaching. For their contribution to the legal profession, attorneys may earn credit for non-paid teaching in an approved continuing legal education activity. Presentations accompanied by thorough, high quality, readable, and carefully prepared written materials will qualify for CLE credit on the basis of three (3) credits for each hour of presentation. Repeat presentations qualify for one-half of the credits available for the initial presentation. A speaker may elect to split the teaching credit with another attorney who, under the speaker's supervision, prepares the written materials. If the intended speaker prepares the written materials and cannot speak due to health problems, emergency or required court appearance, the teaching credit will be split between the speaker and the substituted speaker at the request of either. Should neither make such request, the credit will be given to the actual speaker.
\n(4) Author. The CCLC may award up to a maximum of (6) hours of CLE credit for the authoring of legal articles upon the written certification by the attorney to the CCLC of (a) the amount of time expended in researching and writing the article and (b) the submission of a copy thereof to the CCLC for review, provided that (1) the article or treatise's content and quality are consistent with the purposes of CLE, (2) it is published in a recognized publication which is primarily directed at lawyers, and (3) the project was not done in the ordinary course of the practice of law, the performance of judicial duties, or other regular employment. If co-authors are involved, the credit may be divided on the basis of each attorney's contribution. An attorney requesting author credit shall pay the normal attendee fee.
\n(5) Organizer. The chairperson who organizes an approved CLE activity and who does not make a formal oral presentation therein shall qualify for CLE credit as if he or she had made a one hour presentation. If co-chairpersons are involved, the credit shall be divided on the basis of each attorneys' contribution. An attorney requesting this type of credit should pay, or arrange for the sponsor to pay, the normal attendee fee.
\n(6) Lawyer Wellness. Wellness and mental health issues, including stress, anxiety, substance abuse, depression and suicide, materially affect lawyers’ competency to practice law and their lives. CLE credit as required under Rule 8-104(A) is available for seminars on these and similar quality of life and law practice topics. To receive CLE credit these wellness topics must be discussed in the context of the legal profession and the effects on the quality of the legal services the lawyer is able to provide. Presentations approved may include stress management in the context of work/life balance in the practice of law, signs of substance abuse or mental health issues in oneself or a colleague within the legal community, lawyer assistance programs and other topics that are focused on the impact of substance abuse, mental health issues or stress management on lawyers and judges. CLE credit will not be given to presentations which solely focus on personal stress reduction techniques such as breathing exercises, meditation and yoga. In addition, professionalism CLE credit is available when these topics are presented in a professionalism program approved by the Chief Justice’s Commission on Professionalism.
\n(7) Trial Observation. Every trial encompasses many aspects of the practice of law that are consistently taught in both law school and continuing legal education seminars. Observing how this education is applied into actual practice in the form of a current trial is, in and of itself, very educational. Its importance in achieving competency as a lawyer cannot be emphasized enough. To encourage this, CLE credit for observing trials is available under the following guidelines
\na. Jury trials, bench trials, motion hearings and appellate court arguments in any Federal or State court are eligible. Administrative hearings, trials and probate court, and mediations/arbitrations are also eligible.
\nb. Proceedings in magistrate court and pro se matters are not eligible.
\nc. Credit is not available for trials in which the member takes an active role in the trial or any phase thereof.
\nd. The credit shall be treated as In-House and subject to the limitations of Regulation 8e under Rule 8-106 (B).
\ne. The credit is not eligible for ethics or professionalism CLE.
\nf. The credit is self-reported to the CCLC and must include:
\nmember's name and bar number
\nthe name of the court, parties, date of trial and type of trial
\nthe credit applicable (actual time rounded to nearest half hour)
\nthe administrative fee required by Rule 8-103(C)(2) (currently $4 per credit hour)
\n(B) Accreditation Standards: The Commission shall approve continuing legal education activities consistent with the following standards:
\n(1) They shall have significant intellectual or practical content, and the primary objective shall be to increase the participant's professional competence as a lawyer;
\n
\n(2) They shall constitute an organized program of learning dealing with matters directly related to the practice of law, professional responsibility or ethical obligations of lawyers;
\n
\n(3) Credit may be given for continuing legal education activities where (a) live instruction is used or (b) mechanically or electronically recorded or reproduced material is used if a qualified instructor is available to comment and answer questions;
\n
\n(4) Continuing legal education materials are to be prepared, and activities conducted, by an individual or group qualified by practical or academic experience in a setting physically suitable to the educational activity of the program;
\n
\n(5) Thorough, high quality, and carefully prepared written materials should be distributed to all attendees at or before the time the course is presented. It is recognized that written materials are not suitable or readily available for some types of subjects; the absence of written materials for distribution, should, however, be the exception and not the rule;
\n
\n(6) The Commission may issue from time to time a list of approved accredited sponsors deemed by it to meet the requirements set forth in this Rule. Any other sponsor desiring to be approved for accredited sponsor status must file an application with the Commission with such program material and information as the Commission may require;
\n
\n(7) Any accredited sponsor must keep and maintain attendance records of each continuing legal education program sponsored by it, which shall be furnished to the Commission upon its request.
Regulations
\n(1) Continuing Legal Education. The CCLC shall determine those matters which directly relate to the practice of law so as to be eligible for CLE credit. They shall constitute an organized program of learning dealing with matters directly related to the practice of law, professional responsibility, or ethical obligations of lawyers.
\n(2) Law School Courses. Courses offered by an ABA accredited law school shall receive credit on the basis of one-half (1/2) hour of CLE credit for each 60 minutes of actual instruction. No more than twenty-four (24) CLE hours in any calendar year may be earned by law school courses. Success on an examination is not required for credit and the course may be attended on an audit (not for academic credit) basis. No credit is available for law school courses attended prior to becoming an active member of the State Bar of Georgia. Law courses in schools other than law schools will not qualify.
\n(3) Bar Review/Refresher Course. Courses designed to review or refresh recent law school graduates or other attorneys in preparation for any bar exam shall not be approved for CLE credit.
\n(4) Approval. CLE activities may be approved upon the written application of sponsors on an individual program basis, sponsors on an accredited sponsor basis, or attorneys on an individual program basis. In addition, the CCLC may approve both CLE activities and accredited sponsors on its own motion, on either an individual program or accredited sponsor basis. All applications for CLE course approval shall:
\na. Be submitted at least thirty (30) days, and preferably longer, in advance of the course, although the CCLC may grant retroactive approval;
\n
\nb. Be submitted on forms furnished by the CCLC;
\n
\nc. Contain all information requested on the form;
\n
\nd. Be accompanied by a course outline or brochure that describes the course content, identifies the teachers, lists the time devoted to each topic, and shows each date and location at which the program will be offered;
\n
\ne. Include a detailed calculation of the total CLE hours and of the ethics hours.
In addition to the foregoing, sponsors shall within thirty (30) days after the course is concluded:
\na. Furnish to the CCLC a list in alphabetical order of the name and State Bar number of each Georgia attendee;
\n
\nb. Remit to the CCLC the appropriate sponsor fee. Sponsors who have advance approval for courses may include in their brochures or other course descriptions the information contained in the following illustration:
This course (or seminar, etc.) has been approved by the Commission on Continuing Lawyer Competency of the State Bar of Georgia for mandatory continuing legal education credit in the amount of _____hours, of which ______hours will also apply in the area of ethics. The reporting of your attendance at this course will be done for you by (name of sponsor). To assure proper credit, please be sure to furnish us with your correct Georgia Bar number. (If applicable: The administrative fee for this course will be paid for you by (name of sponsor) directly to the Commission.)
\nSponsors not having advance approval shall make no representation concerning the approval of a course for CLE credit by the CCLC.
\n
\nThe CCLC will mail a notice of its decision on all CLE activity approval requests within ninety days of their receipt. Approval thereof will be deemed if the notice is not timely mailed. This automatic approval will not operate if the sponsor contributes to the delay by failing to provide the complete information requested by the CCLC, or if the CCLC timely notifies the sponsor that the matter has been tabled and the reason therefore.
(5) Approval of Accredited Sponsors. CCLC may, at its sole discretion, approve the accredited sponsors. Accredited sponsors shall
\na. Complete such application as the CCLC requires;
\nb. Comply with all the CLE rules and regulations, including any amendments thereto;
\nc. Upon request by the CCLC, submit, on forms to be furnished by the CCLC, all future CLE activities for confirmation of the approved total number of CLE hours, ethics hours, trial hours and professionalism hours
\nd. Conduct all CLE activities substantially as advertised and represented to the CCLC;
\ne. Furnish to the CCLC, within 30 days after each CLE activity, the following:
\ni. A list of the name and State Bar membership number of each Georgia attendee; and
\nii. The required sponsor fee for the CLE activity;
\nf. Allow in-person observation of all CLE activities by the Justices of the Supreme Court, officers of the State Bar of Georgia, members of the Overview Committee, members of the CCLC and the CCLC staff;
\ng. Comply with any and all requirements or representations which may be contained in any form required by the CCLC for the confirmation of the number of approved hours, and
\nh. Submit such other forms as the CCLC may from time to time require, and reply to any and all inquiries from the CCLC.
\n(6) Restrictions on Accredited Sponsors. Accredited sponsors shall not use any name which may cause confusion with the State Bar or any of its entities or with the Commission on Continuing Lawyer Competency, or with ICLE in Georgia. At the sole discretion of the CCLC, an accredited sponsor may be required to place a disclaimer upon any communication with members of the State Bar which disclaims the accredited sponsor from any connection with the State Bar or CCLC. Such disclaimer, if required, shall be approved by the CCLC. An accredited sponsor shall not link to any web page on the State Bar of Georgia without the written approval of the State Bar of Georgia and subject to any requirements and restriction that may be placed upon such approval.
\n(7) Revocation of Accredited Sponsor Status. The CCLC may, with or without cause, at its sole discretion, revoke the accredited sponsor status of any CLE provider.
\n
\n(8) In-House/Self-Study CLE. The Commission recognizes that law firms, corporate legal departments and similar entities, either alone or in conjunction with each other, will develop and present In-House continuing legal education activities to assist their member attorneys in maintaining their professional competence. The Commission further recognizes that these In-House CLE activities often are designed to address matters most relevant to a firm's own attorneys. However, it is also educational and beneficial for attorneys to meet and learn from colleagues who practice in other firms, corporate legal departments, or similar entities including sole practitioners.
The Commission recognizes that active member attorneys on an individual basis may participate in distance learning CLE activities, which constitutes Self-Study.
\nThese In-House/Self-Study CLE activities may be approved for credit under these Rules and Regulations plus the following additional conditions:
\n
a. All In-House/Self-Study CLE activities shall be designed specifically as an organized program of learning.
\n
\nb. All In-House/Self-Study CLE activities must be open to observation by members of the CCLC and its staff;
\n
\nc. Experienced attorneys must substantially contribute to the development and presentation of all In-House/Self-Study CLE activities;
\n
\nd. In-House/Self-Study CLE activities must be scheduled at a time and location so as to be free of interruptions from telephone calls and other office matters.
\n
\ne. Up to six (6) CLE hours may be earned by an attorney in a calendar year through any combination of approved In-House/Self-Study activities. In addition, up to six hours of In-House/Self-Study credit may be carried forward and applied to In-House/Self-Study CLE for the next calendar year or carried back to the previous year to satisfy a CLE deficiency as long as the In-House/Self-Study limit for that year has not been met. While In-House credits count toward this six (6) CLE hour annual limit for all members of the sponsoring law firm or legal department, non-member attorneys who attend those In-House CLE programs will receive regular credit that does not count toward the six (6) CLE hour annual limit. For example, if a law firm conducts a seminar attended both by its partners or associates and by in-house counsel of its corporate client or other invited attorney guests, these credits would count toward the six (6) hour limit for the firm's partners and associates, but not for the non-member guests.
(9) Facilities. Sponsors ordinarily must provide a facility with adequate lighting, temperature controlled ventilation, and a designated non-smoking area. For a non-clinical CLE activity, the facility should be set up in classroom or similar style to provide a writing surface for each pre-registered attendee, to provide a minimum of two linear feet of table space per chair, and should provide sufficient space behind the chairs in each row to permit easy access and exit to each seat. Crowding in the facility detracts from the learning process and will not be permitted.
\n(10) Written Materials. Qualifying written materials shall specifically address each of the topics of the seminar. These materials must be prepared by the speaker (or someone acting under his or her direct supervision) and shall be distributed to all attendees at or before the time the seminar is held. There are essentially three rationales for these requirements. First, they ensure speaker organization and preparation. Second, they alleviate the need for attendees to take notes and allow them to concentrate on the oral presentations. Finally, they provide a valuable reference tool for the attendees after they leave the seminar.
\nExamples of written materials which alone would not qualify include, but are not limited to, the following: (1) topical outlines; (2) topical outlines with case citations; (3) copies of statutes or cases; (4) copies of leases, contracts, wills and other legal instruments (unless accompanied by qualifying explanatory text); (5) hornbooks (unless speaker prepared and on point); (6) casebooks; (7) subsequently prepared transcripts.
\nThe quality of oral presentations and the overall educational value of the seminar will not excuse the written materials accreditation requirement.
\nIt is recognized that on rare occasions, or for unique topics, preparation of written materials may not be possible or appropriate. Thus, for example, where the particular law which is the topic of a seminar changes dramatically immediately before the seminar is given, the prepared materials may be rendered obsolete. Likewise, written materials may not always be suitable for a clinical program on oral advocacy. In these exceptional circumstances, the requirements of this regulation may not apply. If there is any question as to whether written materials are required for a given topic, the sponsor is advised to contact the Commission in advance of the seminar.
\n(11) Sponsor Records. In addition to the required attendance records, sponsors are encouraged, though not required, to solicit written evaluations of each sponsored program from its attendees and to maintain for at least two years after the program all such evaluations received, both for the sponsor's benefit and for furnishing to the Commission upon its request. A sponsor's policy either to solicit and maintain such evaluations or not to do so may be considered by the Commission as a factor bearing on the sponsor's accreditation.
\n(12) Primary Objective Test.The primary objective of CLE shall be to increase the attendee's professional competence as a lawyer. Worthwhile professional activities which have other primary objectives are encouraged, but do not meet the accreditation standards for CLE credit. Bar meetings, service on committees, jury duty, and client development or marketing seminars are examples of activities which do not meet the primary objective test.
\n(13) ADR CLE. CLE activities which train attorneys in the generally accepted processes of alternative dispute resolution are consistent with Accreditation Standards 1 and 2 where such programs meet the other criteria set forth herein
\n(14) Practice Management CLE. (CLE activities relating to the development and management of a law practice including client relations) Practice Management CLE includes, but is not limited to, those activities which (1) teach lawyers how to organize and manage their law practices so as to promote the efficient, economical and competent delivery of legal services; and (2) teach lawyers how to create and maintain good client relations consistent with existing ethical and professional guidelines so as to eliminate malpractice claims and bar grievances while improving service to the client and the public image of the profession. Practice Management CLE is consistent with Accreditation Standards 1 and 2 where such programs meet the other criteria set forth herein.
\n(15) Distance Learning CLE. In addition to traditional approved continuing legal education activities attended live and in-person by groups of attorneys, distance learning delivery formats are acceptable provided they are designed specifically as organized programs of learning and meet the other accreditation standards set out in these Rules and Regulations. These distance learning CLE activities may be attended by an individual attorney with no minimum number of attendees needed to receive approved MCLE credit, but must comply with the In-House/Self-Study CLE Regulation 8 to Rule 8-106(B). Examples of qualifying distance learning formats include: live CLE activities presented via video or audio replays of live CLE activities; computer based CLE activities, on demand CLE programs, teleconference CLE programs and live CLE webcasts/webinars. When attended by an individual attorney on a computer, telephone or other electronic device, the distance learning activity constitutes self-study CLE and is subject to the 6-hour per year limit. Examples of non-qualifying education activities that are encouraged on a non-MCLE approved credit basis include: reading cases and advance sheets, legal research, internet chat groups and jury duty.
"},{"parentId":232,"version":2,"id":240,"name":"Rule 7-101. Committee.","bodyText":"The program will be administered by the State Bar's Lawyer Assistance Committee ("Committee"). The Committee shall monitor and render advice to the staff, Executive Committee, and Board of Governors with respect to the rules, procedures, policies and operation of a Lawyer Assistance Program ("LAP").
"},{"parentId":233,"version":2,"id":122,"name":"Rule 8-107. Grace Period and Noncompliance.","bodyText":"(A) Grace Period
\n\n\n(1) Members who are deficient in their CLE, fees, or other requirements at the end of a calendar year are entitled to an automatic grace period until March 31st of the succeeding year to make up their deficiency. This does not change the requirement that members file their annual report by January 31st.
\n(2) Members who remain deficient on April 1st of the succeeding year shall pay a late CLE fee in an amount to be set by the Commission.
\n
(B) Noncompliance
\n\n\n(1) Notice. Members who remain deficient in their CLE, annual report filing, fees, or other requirements on April 1st of the succeeding year are in noncompliance. The Commission shall so notify the members by first class mail to the member's current address contained in the membership records of the State Bar of Georgia. Service or actual receipt is not a prerequisite to actions authorized by these Rules.
\n(2) Hearing. Members may contest their noncompliance by requesting a hearing before the Commission. The request should be in writing, contain the reasons for their contest, and be made within 60 days of the date of the notice of noncompliance mailed by the Commission. The Commission shall hear the matter at its next meeting. No action will be taken while hearings are pending.
\n(3) Report. The Commission shall report to the Supreme Court those members who remain in noncompliance after the time to request hearings has expired or any requested hearings have been held.
\n(4) Supreme Court of Georgia Action. Upon receipt from the Commission of a report of noncompliance, the Supreme Court of Georgia shall enter an order it deems appropriate including an allowance of additional time for compliance or summary suspension from the practice of law until further order of the Court.
\n
Regulation
\n(1) Late CLE Fee: An attorney who does not complete the annual, minimum CLE requirement until after March 31st of the following year shall pay a $100 late CLE fee. This fee shall be due April 1st. Thereafter, if the attorney's CLE deficiency is not corrected by September 30th of the same year, or if the $100 late CLE fee remains unpaid on that September 30th, an additional $150 late fee shall be due immediately.
"},{"parentId":237,"version":2,"id":242,"name":"Rule 7-102. Membership.","bodyText":"The Committee shall be appointed by the President of the State Bar in accordance with Article VIII, Section 1, of the bylaws of the State Bar of Georgia. In addition, the President, at his or her discretion, may appoint up to four non-lawyers to serve on the Committee, provided that such non-lawyers are licensed, certified addiction counselors, certified employee assistance professionals, licensed therapists, or other persons who have experience in conducting alcohol and drug rehabilitation intervention programs or mental health assistance programs. The term of such non-lawyer appointment shall be one year. Any member of the Committee who is a recovered chemical or alcohol dependent person must have a period of sobriety of at least five years.
"},{"parentId":240,"version":2,"id":244,"name":"Rule 7-103. Responsibility.","bodyText":"The Committee shall be responsible for implementing an impairment program that provides education, referral and intervention.
"},{"parentId":243,"version":2,"id":296,"name":"Rule 4-402. The Formal Advisory Opinion Board","bodyText":"(a) The Formal Advisory Opinion Board shall consist only of active members of the State Bar of Georgia who shall be appointed by the President of the State Bar of Georgia, with the approval of the Board of Governors of the State Bar of Georgia.
\n
\n(b) The members of the Formal Advisory Opinion Board shall be selected as follows:
(1) Five members of the State Bar of Georgia at-large;
\n
\n(2) One member of the Georgia Trial Lawyers Association;
\n
\n(3) One member of the Georgia Defense Lawyers Association;
\n
\n(4) One member of the Georgia Association of Criminal Defense Lawyers;
\n
\n(5) One member of the Young Lawyers Division of the State Bar of Georgia;
\n
\n(6) One member of the Georgia District Attorneys Association;
\n
\n(7) One member of the faculty of each American Bar Association Accredited Law School operating within the State of Georgia;
\n
\n(8) One member of the Investigative Panel of the State Disciplinary Board;
\n
\n(9) One member of the Review Panel of the State Disciplinary Board; and
(10) One member of the Executive Committee of the State Bar of Georgia.
\n(c) All members shall be appointed for terms of two years subject to the following exceptions:
\n(1) Any person appointed to fill a vacancy occasioned by resignation, death, disqualification, or disability shall serve only for the unexpired term of the member replaced unless reappointed;
\n
\n(2) The members appointed from the Investigative Panel and Review Panel of the State Disciplinary Board and the Executive Committee shall serve for a term of one year;
\n
\n(3) The terms of the current members of the Formal Advisory Opinion Board will terminate at the Annual Meeting of the State Bar of Georgia following the amendment of this Rule regardless of the length of each member's current term; thereafter all appointments will be as follows to achieve staggered, two-year terms:
\n
(i) Three of the initial Association members (including the Georgia Trial Lawyers Association, the Georgia Defense Lawyers Association, the Georgia Association of Criminal Defense Lawyers, the Young Lawyers Division of the State Bar of Georgia and the Georgia District Attorneys Association) shall be appointed to one-year terms; two of the initial Association members shall be appointed to two-year terms. As each initial term expires, the successor appointee shall be appointed for a term of two years;
\n
\n(ii) Two of the initial members appointed from the State Bar of Georgia at-large (the "At-Large Members") shall be appointed to one-year terms; three of the initial At-Large Members shall be appointed to two-year terms. As each initial term expires, the successor appointee shall be appointed for a term of two years;
\n
\n(iii) Two of the initial members from the American Bar Association Accredited Law Schools shall be appointed to one-year terms; two of the initial law school members shall be appointed to two-year terms. As each initial term expires, the successor appointee shall be appointed for a term of two years;
\n(4) All members shall be eligible for immediate reappointment to one additional two-year term, unless the President of the State Bar of Georgia, with approval of the Board of Governors of the State Bar of Georgia, deems it appropriate to reappoint a member for one or more additional terms.
\n(d) The Formal Advisiory Opinion Board shall annually elect a chairperson and such other officers as it may deem proper at the first meeting of the Formal Advisory Opinion Board after July 1 of each year.
(e) The Formal Advisory Opinion Board shall have the authority to prescribe its own rules of conduct and procedure.
"},{"parentId":247,"version":2,"id":246,"name":"Rule 7-104. Funding.","bodyText":"The work of the Committee and any treatment provider selected to assist the Committee in carrying out the work of the program shall be funded from the general budget of the State Bar and/or through donations and grants from the Georgia Bar Foundation or other public or private sources.
"},{"parentId":248,"version":2,"id":110,"name":"Rule 4-403. Formal Advisory Opinions","bodyText":"(a) The Formal Advisory Opinion Board shall be authorized to draft Proposed Formal Advisory Opinions concerning a proper interpretation of the Georgia Rules of Professional Conduct or any of the grounds for disciplinary action as applied to a given state of facts. The Proposed Formal Advisory Opinion should address prospective conduct and may respond to a request for a review of an Informal Advisory Opinion or respond to a direct request for a Formal Advisory Opinion.
\n
\n(b) When a Formal Advisory Opinion is requested, the Formal Advisory Opinion Board should review the request and make a preliminary determination whether a Proposed Formal Advisory Opinion should be drafted. Factors to be considered by the Formal Advisory Opinion Board include whether the issue is of general interest to the members of the State Bar of Georgia, whether a genuine ethical issue is presented, the existence of opinions on the subject from other jurisdictions, and the nature of the prospective conduct.
\n
\n(c) When the Formal Advisory Opinion Board makes a preliminary determination that a Proposed Formal Advisory Opinion should be drafted, it shall publish the Proposed Formal Advisory Opinion either in an official publication of the State Bar of Georgia or on the website of the State Bar Georgia, and solicit comments from the members of the State Bar of Georgia. If the proposed Formal Advisory Opinion is published on the State Bar of Georgia website only, the State Bar of Georgia will send advance notification by e-mail to the entire membership that have provided the State Bar of Georgia with an e-mail address, that the proposed opinion will be published on the State Bar of Georgia website. Following a reasonable period of time for receipt of comments from the members of the State Bar of Georgia, the Formal Advisory Opinion Board shall then make a final determination to either file the Proposed Formal Advisory Opinion as drafted or modified, or reconsider its decision and decline to draft and file the Proposed Formal Advisory Opinion.
\n
\n(d) After the Formal Advisory Opinion Board makes a final determination that the Proposed Formal Advisory Opinion should be drafted and filed, the Formal Advisory Opinion shall then be filed with the Supreme Court of Georgia and republished either in an official publication of the State Bar of Georgia or on the website of the State Bar of Georgia. If the proposed Formal Advisory Opinion is to be republished on the State Bar of Georgia website only, the State Bar of Georgia will send advance notificaiton by e-mail to the entire membership that have provided the State Bar of Georgia with an e-mail address, that the proposed opinion will be republished on the State Bar of Georgia website. Unless the Supreme Court of Georgia grants review as provided hereinafter, the opinion shall be binding only on the State Bar of Georgia and the person who requested the opinion, and not on the Supreme Court of Georgia, which shall treat the opinion as persuasive authority only. Within 20 days of the filing of the Formal Advisory Opinion or the date the official publication is mailed to the members of the State Bar of Georgia (if the opinion is published in an official publication of the State Bar of Georgia), or first appears on the website of the State Bar of Georgia (if the opinion is published on the website), whichever is later, the State Bar of Georgia or the person who requested the opinion may file a petition for discretionary review thereof with the Supreme Court of Georgia. The petition shall designate the Formal Advisory Opinion sought to be reviewed and shall concisely state the manner in which the petitioner is aggrieved. If the Supreme Court of Georgia grants the petition for discretionary review or decides to review the opinion on its own motion, the record shall consist of the comments received by the Formal Advisory Opinion Board from members of the State Bar of Georgia. The State Bar of Georgia and the person requesting the opinion shall follow the briefing schedule set forth in Supreme Court of Georgia Rule 10, counting from the date of the order granting review. The final determination may be either by written opinion or by order of the Supreme Court of Georgia and shall state whether the Formal Advisory Opinion is approved, modified or disapproved, or shall provide for such other final disposition as is appropriate.
\n
\n(e) If the Supreme Court of Georgia declines to review the Formal Advisory Opinion, it shall be binding only on the State Bar of Georgia and the person who requested the opinion, and not on the Supreme Court of Georgia, which shall treat the opinion as persuasive authority only. If the Supreme Court of Georgia grants review and disapproves the opinion, it shall have absolutely no effect and shall not constitute either persuasive or binding authority. If the Supreme Court of Georgia approves or modifies the opinion, it shall be binding on all members of the State Bar of Georgia and shall be published in the official Georgia Reports. The Supreme Court of Georgia shall accord such approved or modified opinion the same precedential authority given to the regularly published judicial opinions of the Court.
\n
\n(f) The Formal Advisory Opinion Board may call upon the Office of the General Counsel for staff support in researching and drafting Proposed Formal Advisory Opinions.
\n
\n(g) The name of a lawyer requesting an Informal Advisory Opinion or Formal Advisory Opinion will be held confidential unless the lawyer elects otherwise.
The Committee shall promote and implement procedures to communicate to impaired attorneys and the Bar in general the fact that there is a program available and ready to assist in helping the impaired attorneys to overcome their problem.
"},{"parentId":254,"version":2,"id":250,"name":"Rule 7-202. Volunteers.","bodyText":"The Committee may establish a network of attorneys and lay persons throughout the state of Georgia who are experienced or trained in impairment counseling, treatment or rehabilitation, who can conduct education and awareness programs and assist in counseling and intervention programs and services. The Committee may also establish a network of peer-support volunteers who are members of the State Bar of Georgia who are not trained in impairment counseling, treatment or rehabilitation, who can provide support to impaired or potentially impaired attorneys by sharing their life experiences in dealing with (a) mental or emotional health problems, (b) substance abuse problems or (c) other similar problems that can adversely affect the quality of attorneys’ lives and their ability to function effectively as lawyers.
"},{"parentId":256,"version":2,"id":252,"name":"Rule 7-203. Intervention and Counseling.","bodyText":"The members of the Committee shall establish, design and implement all procedures necessary to receive information concerning impaired attorneys. Upon a determination that an attorney is impaired, the Committee shall implement such resources as to the Committee appear appropriate in each individual case. In carrying out its duties under this rule, the Committee, subject to the approval of the Executive Committee, is authorized to outsource the clinical portion of the Lawyer Assistance Program to private sector health care professionals. Such health care professionals and their related staff, consultants and other designees shall be authorized to communicate with each other and with the Committee regarding the program or persons referred to the program by the Committee. Said communications shall not constitute a violation of the confidentiality rules established herein.
"},{"parentId":259,"version":2,"id":132,"name":"Rule 10-111. Confidentiality.","bodyText":"\n
The Committee shall be authorized to establish and implement procedures to handle all contacts from or concerning impaired or potentially impaired attorneys, either through its chosen health care professional source, the statewide network established pursuant to Rule 7-202, or by any other procedure through which appropriate counseling or assistance to such attorneys may be provided.
"},{"parentId":264,"version":2,"id":260,"name":"Rule 7-302. Referrals from the State Disciplinary Board.","bodyText":"Upon the referral of any case to the Committee by the State Disciplinary Board of the State Bar of Georgia, the Committee shall provide assistance to the impaired attorney referred by the Disciplinary Board as otherwise authorized by these rules. The Committee shall report to the Board, from time to time, the progress or lack of progress of the attorney so referred.
"},{"parentId":267,"version":2,"id":257,"name":"Rule 7-303. Confidentiality.","bodyText":"Except as provided in this Rule and in Rule 4-104 (b), Rule 4-104 (c), Rule 7-203 and Rule 7-305, all proceedings and records of the Committee, its members, staff, consultants (including without limitation its contractor for clinical services) and other designees, including any information provided to any of them, shall be confidential unless the attorney who has provided the information or caused the record to be created otherwise elects, except that any such person may reveal (i) to police or emergency responders, or any person in imminent danger, information needed to avoid or prevent death or substantial bodily harm, and (ii) information:
\n
(a) Initially, three members of the Committee, including at least one member of the Board of Governors, shall be appointed by the Immediate Past President for one-year terms; three members of the Committee, including at least one member of the Board of Governors, shall be appointed by the President for two-year terms; and three members of the Committee, including at least one member of the Board of Governors, shall be appointed by the President-elect for three-year terms. The President of the State Bar shall appoint the chairperson of the Committee during the initial year from among the members. These appointments shall become effective July 1, 1995, and shall be made by those serving at that time in the offices of Immediate Past President, President and President-elect.
\n(b) In each year following the initial year, the President-elect shall appoint three members, at least one of whom shall be a member of the Board of Governors at the time of their appointment, to three-year terms.
\n(c) The Committee shall elect a chairperson and such other officers as the Committee members deem appropriate.
\n(d) Vacancies shall be filled by appointment of the President of the State Bar for any unexpired term.
"},{"parentId":269,"version":2,"id":259,"name":"Rule 7-304. Reports.","bodyText":"The Committee shall implement and design such reports and documentation as it deems necessary or as is requested by the president of the State Bar, subject to the confidentiality provisions of Rule 7-303.
"},{"parentId":276,"version":2,"id":234,"name":"Rule 12-101. Consumer Assistance Committee.","bodyText":"The advisory and oversight responsibility for this program will be vested in the Consumer Assistance Committee ("Committee").
"},{"parentId":277,"version":2,"id":128,"name":"Rule 12-102. Consumer Assistance Committee; Membership and Terms.","bodyText":"(a) The Committee shall consist of eight members including seven State Bar members and one public member. At least two-thirds of the State Bar members shall be members of the Board of Governors of the State Bar at the time of their appointment. Committee members shall serve staggered three-year terms. The number of members shall be subject to change by a majority vote of the Board of Governors but shall never be less than five.
\n(b) The public member shall be appointed by the Supreme Court for a three year term. All other Committee members shall be appointed by the President of the Bar for three year terms except, initially, two Committee members shall be appointed for one-year terms, two members shall be appointed for two-year terms, and two members shall be appointed for a three-year term. Committee terms shall begin with the operational year of the State Bar. Should additional members be approved, their three-year terms shall be assigned in such fashion as to best maintain uniformity in the number of members to be appointed each year.
\n(c) The Committee shall elect a chairperson and such other officers as the Committee members deemed appropriate.
\n(d) Vacancies shall be filled by appointment of the President of the State Bar for any unexpired term.
"},{"parentId":277,"version":3,"id":134,"name":"Rule 12-102. Consumer Assistance Committee; Membership and Terms.","bodyText":"The Committee shall meet for the purposes of oversight of the Consumer Assistance Program, coordination of the program's goals and implementation of directives and resolutions from the Board of Governors. The Committee shall have authority to adopt additional regulations for the administration of the program which are not otherwise inconsistent with these rules. Additionally, the Committee will develop recommendations for submission to the Executive Committee and the Board of Governors with regard to the funding, staffing, administration, and operation of the program, which may include proposed changes to Bylaws and Rules of the State Bar.
"},{"parentId":279,"version":2,"id":138,"name":"Rule 12-104. Staff and Funding.","bodyText":"The State Bar shall provide such staff as it deems necessary. The program shall be funded through the general budget of the State Bar and, when appropriate, through donations and grants from foundations and other public and private sources.
"},{"parentId":280,"version":2,"id":140,"name":"Rule 12-105. Supervision.","bodyText":"The Consumer Assistance Program shall operate under the supervision of the Executive Director of the State Bar.
"},{"parentId":281,"version":2,"id":142,"name":"Rule 12-106. Procedures.","bodyText":"Inquiries concerning State Bar members may be received by Consumer Assistance staff in writing, in person and by telephone. Consumer Assistance staff shall have the authority to contact the attorney involved and conduct other limited investigation necessary to determine if the inquiry can be resolved in an informal method either through communications with Consumer Assistance staff or by referral to other State Bar programs including but not limited to Fee Arbitration, Clients' Security Fund, Law Practice Management Program, and the Lawyer Assistance Program.
\nIf the conduct which is the subject of the inquiry appears to violate one of the standards of conduct set forth in Part IV of the Bar Rules, Consumer Assistance staff shall have independent authority to determine whether the matter can either be resolved informally or should be referred to the Office of General Counsel for further screening under Part IV of the Bar Rules.
\nConsumer Assistance staff shall follow written guidelines developed and established by the Consumer Assistance Committee with the advice and counsel of the General Counsel and Executive Director of the State Bar and approved by the Executive Committee and Board of Governors of the State Bar.
\nRegardless of any decision made by Consumer Assistance staff, any individual shall have the right to request grievance forms and file a grievance under Part IV of the Bar Rules.
\nIn the event a bar member who is the subject of any inquiry disagrees with the voluntary resolution recommended by Consumer Assistance staff, staff may refer the matter to the Office of General Counsel for further screening under Part IV of the Bar Rules.
"},{"parentId":282,"version":2,"id":144,"name":"Rule 12-107. Confidentiality of Proceedings.","bodyText":"(a) All investigations and proceedings provided for herein shall be confidential unless the respondent otherwise elects or as hereinafter provided in this Rule and Part IV of the Bar Rules.
\n(b) Except as expressly permitted by these Rules, no person connected with the Consumer Assistance Program shall disclose information concerning or comment on any proceeding under Part XII of these Rules.
\n(1) Nothing in the Rules shall prohibit truthful and accurate public statements of fact about a proceeding under Part XII of these Rules, provided however, that in the event of such statement any other person involved in the proceeding may make truthful and accurate public statements of fact regarding the proceeding, including information otherwise confidential under the provisions of Rule 4-102 (d), Rule 1.6, as may be reasonably necessary to defend that person's reputation;
\n(2) Willful and malicious false statements of fact made by any person connected with a proceeding under Part XII of these Rules may subject such person to rule for contempt by the Supreme Court of Georgia.
\n(c) In the event the conduct of the attorney appears to violate one or more of the Georgia Rules of Professional Conduct set forth in Part IV of the Bar Rules, and Consumer Assistance staff in its sole discretion makes a determination under Rule 12-106 that the matter cannot be resolved informally, then the Consumer Assistance staff shall inform callers of their option to file a grievance and shall advise the Office of the General Counsel to send the appropriate forms to the callers.
\n(d) The Consumer Assistance Committee and staff may reveal confidential information when required by law or court order.
"},{"parentId":283,"version":2,"id":146,"name":"Rule 12-108. Disclosure.","bodyText":"Information obtained by the Consumer Assistance Committee and staff shall not be disclosed to the Office of General Counsel unless:
\nThe State Bar, its employees, and members of the Committee shall be absolutely immune from civil liability for all acts in the course of their official duties.
"},{"parentId":289,"version":1,"id":72,"name":"RULE 4.1 TRUTHFULNESS IN STATEMENTS TO OTHERS","bodyText":"In the course of representing a client a lawyer shall not knowingly:
\nThe maximum penalty for a violation of this Rule is disbarment.
\n
\nComment
\n
\nMisrepresentation
\n
\n[1] 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 failure to act.
\n
\nStatements of Fact
\n
\n[2] 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. Comments which fall under the general category of "puffing" do not violate this rule. 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 in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.
\n
\nFraud by Client
\n
\n[3] Paragraph (b) recognizes that substantive law may require a lawyer to disclose certain information to avoid being deemed to have assisted the client's crime or fraud. The requirement of disclosure created by this paragraph is, however, subject to the obligations created by Rule 1.6: Confidentiality of Information.
(a) Appointment and Terms. The Standing Committee shall be appointed by the Court, and shall consist of 23 members, 11 of whom shall be nonlawyers. The nonlawyer members should be geographically representative of the State. The lawyer members shall be appointed by the Court and shall include at least one member from each judicial district. The Court shall appoint a chair and at least 1 vice-chair of the Standing Committee, both of whom may be nonlawyers. Eight of the members of the Standing Committee shall constitute a quorum. All appointments to the Standing Committee shall be for a term of 3 years, except that it shall be the goal of the initial appointments that one-third (1/3) of the terms of the members appointed will expire annually. The members who initially serve terms of less than 3 years shall be eligible for immediate reappointment. No member shall be appointed to more than 2 full consecutive terms.
\n(b) Duties. It shall be the duty of the Standing Committee to receive and evaluate District Committee reports and to determine whether litigation should be instituted in Superior Court against any alleged offender. The Standing Committee may approve civil injunctive proceedings, civil or criminal contempt proceedings, a combination of injunctive and contempt proceedings, or such other action as may be appropriate. In addition, the duties of the Standing Committee shall include, but not be limited to:
\n(1) the consideration and investigation of activities that may, or do, constitute the unlicensed practice of law;
\n(2) the supervision of the District Committees, which shall include, but not be limited to:
\n
\n(A) prescribing rules of procedure for District Committees;
\n(B) assigning reports of unlicensed practice of law for investigation;
\n(C) reassigning or withdrawing matters previously assigned, exercising final authority to close cases not deemed by the Standing Committee to then warrant further action by the State Bar of Georgia for unlicensed practice of law, and closing cases proposed to be resolved by a cease and desist affidavit where staff counsel objects to the closing of the case or the acceptance of a cease and desist affidavit by the District Committee;
\n(D) joining with a District Committee in a particular investigation; and
\n(E) request staff investigators, staff counsel, and voluntary bar counsel to conduct investigations on behalf of or in concert with the District Committees; and
\n(F) suspending District Committee members and chairs for cause and appointing a temporary District Committee chair where there has been a suspension, resignation, or removal, pending the appointment of a replacement chair by the Court;
(3) the initiation and supervision of litigation, including the delegation of responsibility to staff, or Counsel for the Bar to prosecute such litigation;
\n(4) the giving of advice regarding the unlicensed practice of law policy to the officers, Board of Governors, staff, sections, or committees of the State Bar of Georgia as requested; and
\n(5) furnishing any and all information, confidential records, and files regarding pending or closed investigations of unlicensed practice of law to any state or federal law enforcement or regulatory agency, United States Attorney, District Attorney, Solicitor, the Georgia Office of Bar Admissions and equivalent entities in other jurisdictions, the State Disciplinary Board of the State Bar of Georgia and equivalent entities in other jurisdictions where there is or may be a violation of state or federal law or the Rules of Professional Conduct of the State Bar of Georgia, or when required by law or court order.
\n"},{"parentId":296,"version":1,"id":73,"name":"RULE 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL","bodyText":"
The maximum penalty for a violation of this Rule is disbarment.
\n
\nComment
\n
\n[1] 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 entity 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 having independent justification or legal authorization for communicating with a represented person is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government entity to speak with government officials about the matter.
\n
\n[2] Communications authorized by law also include constitutionally permissible investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings, when there is applicable judicial precedent that either has found the activity permissible under this Rule or has found this Rule inapplicable. However, the Rule imposes ethical restrictions that go beyond those imposed by constitutional provisions.
\n
\n[3] This Rule applies to communications with any person, whether or not a party to a formal adjudicative proceeding, contract or negotiation, who is represented by counsel concerning the matter to which the communication relates.
\n
\n[4A] In the case of an organization, this Rule prohibits communications with an agent or employee of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. See Formal Advisory Opinion 87-6. If an agent or employee 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). Communication with a former employee of a represented organization is discussed in Formal Advisory Opinion 94-3.
\n
\n[4B] In administering this Rule it should be anticipated that in many instances, prior to the beginning of the interview, the interviewing lawyer will not possess sufficient information to determine whether the relationship of the interviewee to the entity is sufficiently close to place the person in the "represented" category. In those situations the good faith of the lawyer in undertaking the interview should be considered. Evidence of good faith includes an immediate and candid statement of the interest of the person on whose behalf the interview is being taken, a full explanation of why that person's position is adverse to the interests of the entity with which the interviewee is associated, the exploration of the relationship issue at the outset of the interview and the cessation of the interview immediately upon determination that the interview is improper.
\n
\n[5] The prohibition on communications with a represented person only applies, however, 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 1.0. Such an inference may arise in circumstances where there is substantial reason to believe that the person with whom communication is sought is represented in the matter to be discussed. Thus, a lawyer cannot evade the requirement of obtaining the consent of counsel by ignoring the obvious.
\n
\n[6] 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.
\n
\n[6A] A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury.
\n
\n[7] The anti-contact rule serves important public interests which preserve the proper functioning of the judicial system and the administration of justice by a) protecting against misuse of the imbalance of legal skill between a lawyer and layperson; b) safe-guarding the client-lawyer relationship from interference by adverse counsel; c) ensuring that all valid claims and defenses are raised in response to inquiry from adverse counsel; d) reducing the likelihood that clients will disclose privileged or other information that might harm their interests; and e) maintaining the lawyers ability to monitor the case and effectively represent the client.
\n
\n[8] Parties to a matter may communicate directly with each other because this Rule is not intended to affect communications between parties to an action entered into independent of and not at the request or direction of counsel.
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
\nThe maximum penalty for a violation of this Rule is disbarment.
\n
\nComment
\n
\n[1] 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 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(f).
\n
\n[2] 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 persons 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.
(a) Appointment and Terms. Each District Committee shall be appointed by the Court and shall consist of not fewer than 3 members, at least one-third of whom shall be nonlawyers. All appointees shall be residents of the judicial district or have their principal office in the district. The terms of the members of District Committees shall be for 3 years from the date of appointment by the Court or until such time as their successors are appointed, except that it shall be the goal of the initial appointments that one-third (1/3) of the terms of the members appointed will expire annually. The members who initially serve terms of less than 2 years shall be eligible for immediate reappointment. Continuous service of a member shall not exceed 6 years. The expiration of the term of any member shall not disqualify that member from concluding any investigations pending before that member. Any member of a District Committee may be removed from office by the Court.
\n(b) Committee Chair. For each District Committee there shall be a chair designated by the Court. A vice-chair and secretary may be designated by the chair of each District Committee. The chair shall be a member of the State Bar of Georgia.
\n(c) Quorum. Three members of the District Committee or a majority of the members, whichever is less, shall constitute a quorum.
\n(d) Panels. The Chair of a District Committee may divide that Committee into panels of not fewer than 3 members, 1 of whom must be a nonlawyer. The 3-member panel shall elect 1 of its members to preside over the panel's actions. If the chair or vice-chair of the District Committee is a member of a 3-member panel, the chair or vice- chair shall be the presiding officer.
\n(e) Duties. It shall be the duty of each District Committee to investigate, with dispatch, all reports of unlicensed practice of law and to make prompt written report of its investigation and findings to staff counsel. In addition, the duties of the District Committee shall include, but not be limited to:
\n(1) closing cases not deemed by the District Committee to warrant further action by the State Bar of Georgia;
\n(2) closing cases proposed to be resolved by a cease and desist affidavit; and
\n(3) forwarding to staff counsel recommendations for litigation to be reviewed by the Standing Committee.
(f) District Committee Meetings. District Committees should meet at regularly scheduled times. Either the chair or vice chair may call special meetings. District Committees should meet as often as necessary during any period when the Committee has 1 or more pending cases assigned for investigation and report. The time, date and place of scheduled meetings should be set in advance by agreement between each Committee and staff counsel. Meetings may be conducted by telephone conference or by any other technology available and agreed upon by the Committee. Any participant, including staff counsel, may participate in the meeting by telephone conference or any other technology agreed upon by the Committee.
"},{"parentId":300,"version":2,"id":6,"name":"RULE 4.4 RESPECT FOR RIGHTS OF THIRD PERSONS","bodyText":"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.
\n
\nThe maximum penalty for a violation of this Rule is a public reprimand.
\n
\nComment
\n
\n[1] 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.
The maximum penalty for a violation of this Rule is disbarment.
\n
\nComment
\n
\n[1] Paragraph (a) applies to lawyers who have managerial authority over the professional work of a firm. See Rule 1.0(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.
\n
\n[2] 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 Georgia Rules of Professional Conduct. Such 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.
\n
\n[3] 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.
\n
\n[4] Paragraph (c) expresses a general principle of personal responsibility for acts of another. See also Rule 8.4(a).
\n
\n[5] 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 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.
\n
\n[6] 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.
\n
\n[7] 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.
\n
\n[8] 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 Georgia Rules of Professional Conduct. See Rule 5.2(a).
Persons admitted by the courts to the practice of law shall, within sixty days after admission to the bar of the Superior Court, register with the State Bar and pay a monthly pro-rated dues amount calculated from the date of the Superior Court admission through the remainder of the State Bar's fiscal year.
"},{"parentId":316,"version":1,"id":27,"name":"Section 6. Alterations of Positions on Board of Governors.","bodyText":"After the organization of the Board of Governors as provided for in Section 5 above, when alterations in positions on the Board occur because of additional circuit members of the State Bar as referred to in Section 2 above or because of the creation or abolition of circuits or when the terms of members are terminated because of a change in geographical limits of circuits the terms of the members affected shall be determined as follows:
\nThe members of the State Bar shall meet at least once each year at a time and place designated by the Board of Governors. That meeting shall be called the Annual Meeting.
"},{"parentId":322,"version":1,"id":33,"name":"Section 1. Nomination of Officers.","bodyText":"The Board of Governors shall meet during or immediately after the adjournment of the annual meeting of the members or on the following day, as the incoming President may direct. There shall be at least three additional regular meetings of the Board each year at such times and places as may be fixed by the Board or its President. Special meetings may be called by the President. Upon the request of twenty members of the Board, the President or the Executive Director shall give notice of a meeting not less than ten nor more than twenty days after such request is received. Each member of the Board shall have at least ten days' notice by mail of each meeting of the Board of Governors, other than the meeting held in conjunction with the annual meeting.
"},{"parentId":329,"version":1,"id":36,"name":"Section 11. Tie Vote","bodyText":"In addition to the classes of membership provided in the preceding sections of this Article, the Board of Governors or the Executive Committee of the Board may consider and approve or disapprove applications for Affiliate or Law Student membership with the State Bar. Any Affiliate member or Law Student member shall have the right to attend State Bar meetings and receive State Bar official publications, but shall not have the right to hold office or vote or have other rights and privileges incident to membership. An Affiliate or Law Student member shall not hold himself or herself out to the public or imply in any manner that he or she is a member in good standing of the State Bar of Georgia or entitled to practice law in this State. An Affiliate or Law Student member shall not use his or her membership number for any purpose other than communicating with the State Bar. The State Bar retains the right to deny or revoke the membership privileges of any Affiliate or Law Student member who violates this Section.
\n
\nThe application form for an Affiliate or Law Student membership shall include the recommendation of the applicant by an active member in good standing of the State Bar. Affiliate or Law Student membership may be renewed each fiscal year without additional application. The Board of Governors shall prescribe the dues or fees for Affiliate or Law Student membership. Affiliate membership shall be approved only when the applicant is licensed to practice law in another state or the District of Columbia, and is in good standing in all jurisdictions in which he or she is licensed, and is an employee of government, the armed services, a private or commercial institution or a law school, and is not otherwise authorized to practice law in Georgia. Application to become a Law Student member shall be approved when the applicant is enrolled in a law school approved by the American Bar Association or the Georgia Board of Bar Examiners.
The Board of Governors shall be composed of the following:
\nThe Treasurer shall:
\nIn addition to the classes of membership provided in the preceding sections of this Article, the Membership Department may approve or disapprove applications for emeritus member status as provided for in Rule 1-202(d) of the Bar Rules. Applications for emeritus membership shall be on forms prescribed by the Membership Department.
\n
\nEmeritus membership shall have the same privileges, rights, duties and responsibilities as active membership, except that emeritus members shall not give legal advice or otherwise practice law, except as set out in Rule 1-202(d), nominate a member for office or hold office in the State Bar, or vote on any candidate for elected position in or proposal concerning the State Bar.
Emeritus members may be required to pay section dues at the option of each section of the State Bar.
\n
\nAt the sole discretion of the Membership Department, a member who has attained the age of 70 years, and who has been admitted to the practice of law for at least 25 years, may be placed in emeritus status in the event the Membership Department is unable to locate or contact the qualifying member and provided there is no pending disciplinary action against the member.
The President shall:
\nOther sections may be created for members of the bar interested in a specialized area of law or practice. Each section shall have powers and duties consistent with the Rules and Bylaws of the State Bar, subject to the approval of the Board of Governors.
"},{"parentId":369,"version":2,"id":301,"name":"Section 3. The President-Elect.","bodyText":"The President-Elect shall:
\n
The Board of Governors may establish a new section dedicated to an area of law or practice not duplicated by any other section of the State Bar. Every application to the Board for the establishment of a new section shall set forth:
\n(1) A person who is otherwise eligible to practice law or practice as a foreign law consultant as defined in the Rules of the State Bar, but who failed to register as required by the Rules and Article I, Section 1 of these Bylaws, shall be entitled to register at any time for a period one year after the day upon which the person first became eligible upon the following terms and conditions:
\n
\n(a) the payment of the dues for the year in which the applicant registers, together with unpaid dues for any previous year should the period of time in which the applicant failed to register extend between two fiscal years of the State Bar, plus a late fee of $100.00; and
\n
\n(b) the submission of an affidavit stating that the applicant's failure to sooner register was not intended as a violation of the State Bar Rules, that the applicant was not aware of the requirements of the Rules with respect to registration, that the applicant has not practiced law in Georgia during the period between the time the applicant first became eligible and the day the applicant submits the affidavit, and that the applicant will submit to the jurisdiction of the State Disciplinary Board for any complaints or grievances filed regarding the applicant's conduct for the period between eligibility and registration; or
\n
\n(c) in the event the applicant cannot aver that he or she did not practice law in Georgia during the period between the time the applicant first became eligible and the day the applicant actually registered, the applicant shall submit an affidavit stating that the applicant's failure to sooner register was not intended as a violation of the State Bar Rules, and that the applicant was not aware of the requirements of the Rules with respect to registration. The affidavit shall also provide a detailed description of the applicant's practice of law during the period, and state that the applicant will submit to the jurisdiction of the State Disciplinary Board for any complaints or grievances filed regarding the applicant's conduct for the period between eligibility and registration. A copy of the affidavit shall be supplied to either the Standing Committee or District Committee for the Unauthorized Practice of Law.
\n(2) A person who is otherwise eligible to practice law or practice as a foreign law consultant as defined in the Rules of the State Bar, but who failed to register within one year of the date the applicant was first eligible as required by the Rules and these Bylaws, shall be entitled to register within five years of becoming eligible upon the following terms and conditions:
\n(a) the payment of the dues for the year in which the applicant registers, payment of all unpaid dues for all past years at the active member level, and payment of a late fee of $100 for the year in which the applicant registers plus $100 per year for all past years;
\n
\n(b) submission of a determination of fitness from the Board to Determine Fitness of Bar Applicants; and
\n
\n(c) the submission of an affidavit stating that the applicant's failure to sooner register was not intended as a violation of the State Bar Rules, that the applicant was not aware of the requirements of the Rules with respect to registration, that the applicant has not practiced law in Georgia during the period between the time the applicant first became eligible and the day the applicant submits the affidavit, and that the applicant will submit to the jurisdiction of the State Disciplinary Board for any complaints or grievances filed regarding the applicant's conduct for the period between eligibility and registration; or
\n
\n(d) in the event the applicant cannot aver that he or she did not practice law in Georgia during the period between the time the applicant first became eligible and the day the applicant submits the affidavit, the applicant shall submit an affidavit stating that the applicant's failure to sooner register was not intended as a violation of the State Bar Rules and that the applicant was not aware of the requirements of the Rules with respect to registration. The affidavit shall also provide a detailed description of the applicant's practice of law during the period, and state that the applicant will submit to the jurisdiction of the State Disciplinary Board for any complaints or grievances filed regarding the applicant's conduct for the period between eligibility and registration. A copy of the affidavit shall be supplied to the Board to Determine Fitness of Bar Applicants and either the Standing Committee or District Committee for the Unauthorized Practice of Law
\n(3) A person who is otherwise eligible to practice law or practice as a foreign law consultant in Georgia as defined in the Rules of the State Bar, but who failed to register within five years of the date the applicant was first eligible as required by the Rules and these Bylaws, may apply to the Executive Committee for permission to register without reapplying to the Office of Bar Admissions. The Executive Committee shall have complete discretion in considering such application and may impose such requirements, restrictions and qualifications, including penalty fees and past dues, upon the applicant as it deems appropriate. In the event the Executive Committee denies or refuses to consider such waiver application, the person shall be required to reapply to the Office of Bar Admissions.
The Immediate Past President shall:
\nUpon the absence, death, resignation, or disability of the Immediate Past President, the next most immediate past president shall assume the duties of the Immediate Past President.
Upon notice by mail to the members of a section, the Board of Governors may abolish a section.
"},{"parentId":397,"version":1,"id":43,"name":"Section 2. Eligibility","bodyText":"The Executive Committee shall be composed of:
\n\n
\n
The purposes of the Young Lawyers Division shall be:
\nThe Court believes there are unfortunate trends of commercialization and loss of professional community in the current practice of law. These trends are manifested in an undue emphasis on the financial rewards of practice, a lack of courtesy and civility among members of our profession, a lack of respect for the judiciary and for our systems of justice, and a lack of regard for others and for the common good. As a community of professionals, we should strive to make the internal rewards of service, craft, and character, and not the external reward of financial gain, the primary rewards of the practice of law. In our practices we should remember that the primary justification for who we are and what we do is the common good we can achieve through the faithful representation of people who desire to resolve their disputes in a peaceful manner and to prevent future disputes. We should remember, and we should help our clients remember, that the way in which our clients resolve their disputes defines part of the character of our society and we should act accordingly.
\nAs professionals, we need aspirational ideals to help bind us together in a professional community. Accordingly, the Court issues the following Aspirational Statement setting forth general and specific aspirational ideals of our profession. This statement is a beginning list of the ideals of our profession. It is primarily illustrative. Our purpose is not to regulate, and certainly not to provide a basis for discipline, but rather to assist the Bar’s efforts to maintain a professionalism that can stand against the negative trends of commercialization and loss of community. It is the Court’s hope that Georgia’s lawyers, judges, and legal educators will use the following aspirational ideals to reexamine the justifications of the practice of law in our society and to consider the implications of those justifications for their conduct. The Court feels that enhancement of professionalism can be best brought about by the cooperative efforts of the organized bar, the courts, and the law schools with each group working independently, but also jointly in that effort.
\n\n
GENERAL ASPIRATIONAL IDEALS
\nAs a lawyer, I will aspire:
\n\n\n(a) To put fidelity to clients and, through clients, to the common good, before selfish interests.
\n(b) To model for others, and particularly for my clients, the respect due to those we call upon to resolve our disputes and the regard due to all participants in our dispute resolution processes.
\n(c) To avoid all forms of wrongful discrimination in all of my activities including discrimination on the basis of race, religion, sex, age, handicap, veteran status, or national origin. The social goals of equality and fairness will be personal goals for me.
\n(d) To preserve and improve the law, the legal system, and other dispute resolution processes as instruments for the common good.
\n(e) To make the law, the legal system, and other dispute resolution processes available to all.
\n(f) To practice with a personal commitment to the rules governing our profession and to encourage others to do the same.
\n(g) To preserve the dignity and the integrity of our profession by my conduct. The dignity and the integrity of our profession is an inheritance that must be maintained by each successive generation of lawyers.
\n(h) To achieve the excellence of our craft, especially those that permit me to be the moral voice of clients to the public in advocacy while being the moral voice of the public to clients in counseling. Good lawyering should be a moral achievement for both the lawyer and the client.
\n(i) To practice law not as a business, but as a calling in the spirit of public service.
\n
\n
SPECIFIC ASPIRATIONAL IDEALS
\nAs to clients, I will aspire:
\n\n\n(a) To expeditious and economical achievement of all client objectives.
\n(b) To fully informed client decision-making. As a professional, I should:
\n\n\n(1) Counsel clients about all forms of dispute resolution;
\n
\n(2) Counsel clients about the value of cooperation as a means toward the productive resolution of disputes;
\n(3) Maintain the sympathetic detachment that permits objective and independent advice to clients;
\n(4) Communicate promptly and clearly with clients; and
\n(5) Reach clear agreements with clients concerning the nature of the representation.(c) To fair and equitable fee agreements. As a professional, I should:
\n\n\n(1) Discuss alternative methods of charging fees with all clients;
\n
\n(2) Offer fee arrangements that reflect the true value of the services rendered;
\n(3) Reach agreements with clients as early in the relationship as possible;
\n(4) Determine the amount of fees by consideration of many factors and not just time spent by the attorney;
\n(5) Provide written agreements as to all fee arrangements; and
\n(6) Resolve all fee disputes through the arbitration methods provided by the State Bar of Georgia.(d) To comply with the obligations of confidentiality and the avoidance of conflicting loyalties in a manner designed to achieve the fidelity to clients that is the purpose of these obligations.
\n
As to opposing parties and their counsel, I will aspire:
\n\n\n(a) To cooperate with opposing counsel in a manner consistent with the competent representation of all parties. As a professional, I should:
\n\n\n(1) Notify opposing counsel in a timely fashion of any canceled appearance;
\n
\n(2) Grant reasonable requests for extensions or scheduling changes; and
\n(3) Consult with opposing counsel in the scheduling of appearances, meetings, and depositions.(b) To treat opposing counsel in a manner consistent with his or her professional obligations and consistent with the dignity of the search for justice. As a professional, I should:
\n\n(1) Not serve motions or pleadings in such a manner or at such a time as to preclude opportunity for a competent response;
\n
\n(2) Be courteous and civil in all communications;
\n(3) Respond promptly to all requests by opposing counsel;
\n(4) Avoid rudeness and other acts of disrespect in all meetings including depositions and negotiations;
\n(5) Prepare documents that accurately reflect the agreement of all parties; and
\n(6) Clearly identify all changes made in documents submitted by opposing counsel for review.
\n
As to the courts, other tribunals, and to those who assist them, I will aspire:
\n\n\n(a) To represent my clients in a manner consistent with the proper functioning of a fair, efficient, and humane system of justice. As a professional, I should:
\n\n\n(1) Avoid non-essential litigation and non-essential pleading in litigation;
\n
\n(2) Explore the possibilities of settlement of all litigated matters;
\n(3) Seek non-coerced agreement between the parties on procedural and discovery matters;
\n(4) Avoid all delays not dictated by a competent presentation of a client’s claims;
\n(5) Prevent misuses of court time by verifying the availability of key participants for scheduled appearances before the court and by being punctual; and
\n(6) Advise clients about the obligations of civility, courtesy, fairness, cooperation, and other proper behavior expected of those who use our systems of justice.(b) To model for others the respect due to our courts. As a professional I should:
\n\n(1) Act with complete honesty;
\n
\n(2) Know court rules and procedures;
\n(3) Give appropriate deference to court rulings;
\n(4) Avoid undue familiarity with members of the judiciary;
\n(5) Avoid unfounded, unsubstantiated, or unjustified public criticism of members of the judiciary;
\n(6) Show respect by attire and demeanor;
\n(7) Assist the judiciary in determining the applicable law; and
\n(8) Seek to understand the judiciary’s obligations of informed and impartial decision making.
As to my colleagues in the practice of law, I will aspire:
\n\n\n(a) To recognize and to develop our interdependence;
\n(b) To respect the needs of others, especially the need to develop as a whole person; and,
\n(c) To assist my colleagues become better people in the practice of law and to accept their assistance offered to me.
\n
As to our profession, I will aspire:
\n\n\n(a) To improve the practice of law. As a professional, I should:
\n\n\n(1) Assist in continuing legal education efforts;
\n
\n(2) Assist in organized bar activities; and,
\n(3) Assist law schools in the education of our future lawyers.(b) To protect the public from incompetent or other wrongful lawyering. As a professional, I should:
\n\n(1) Assist in bar admissions activities;
\n
\n(2) Report violations of ethical regulations by fellow lawyers; and,
\n(3) Assist in the enforcement of the legal and ethical standards imposed upon all lawyers.
As to the public and our systems of justice, I will aspire:
\n\n"},{"parentId":424,"version":1,"id":45,"name":"Section 4. Terms of Office","bodyText":"(a) To counsel clients about the moral and social consequences of their conduct.
\n(b) To consider the effect of my conduct on the image of our systems of justice including the social effect of advertising methods. As a professional, I should ensure that any advertisement of my services:
\n\n\n(1) Is consistent with the dignity of the justice system and a learned profession;
\n
\n(2) Provides a beneficial service to the public by providing accurate information about the availability of legal services;
\n(3) Educates the public about the law and the legal system;
\n(4) Provides completely honest and straightforward information about my qualifications, fees, and costs; and
\n(5) Does not imply that clients’ legal needs can be met only through aggressive tactics.(c) To provide the pro bono representation that is necessary to make our system of justice available to all.
\n(d) To support organizations that provide pro bono representation to indigent clients.
\n(e) To improve our laws and legal system by, for example:
\n
\n\n\n(1) Serving as a public official;
\n
\n(2) Assisting in the education of the public concerning our laws and legal system;
\n(3) Commenting publicly upon our laws; and
\n(4) Using other appropriate methods of effecting positive change in our laws and legal system.\n
Each member of the Executive Committee shall hold office for the following terms:
\n(a) The appointed Directors shall be appointed by the incoming President for terms to be served concurrent with that of the incoming President.
\n(b) The Officers shall serve for a period concurrent with the incoming President, beginning upon their swearing-in at the Annual Meeting at which they are sworn-in as Officers and continuing until their successors are sworn-in at the next Annual Meeting.
\n
Membership in The Young Lawyers Division shall terminate:
\nNotwithstanding the foregoing, a person who met the requirements of Section 4(a) above at the time such person was elected President-Elect shall continue to be a YLD Member for the duration of the terms of President and Immediate Past President to which he or she succeeds.
\n
STATE BAR OF GEORGIA
\nISSUED BY THE SUPREME COURT OF GEORGIA
\nON FEBRUARY 11, 2000
\nFORMAL ADVISORY OPINION NO. 00-2
For references to Standard of Conduct 4, please see Rule 8.4(a)(4).
\nFor references to Standard of Conduct 5, please see Rules 7.1(a) and (c).
\nFor references to Standard of Conduct 24, please see Rule 5.5(a) and Comments [1] and [2] of Rule 5.5.
\nFor references to EC 3-2, please see Rule 1.1.
\nFor references to EC 3-5, please see Rule 2.1.
\nFor references to EC 3-6, please see Rule 5.3 and Comment [1] of Rule 5.3.
\nFor an explanation regarding the addition of headnotes to the opinion, click here.
\nQUESTION PRESENTED:
\nIs a lawyer aiding a nonlawyer in the unauthorized practice of law when the lawyer allows a nonlawyer member of his or her staff to prepare and sign correspondence which threatens legal action or provides legal advice or both?
\nSUMMARY ANSWER:
\nYes, a lawyer is aiding a nonlawyer1 in the unauthorized practice of law when the lawyer allows a nonlawyer member of his or her staff to prepare and sign correspondence which threatens legal action or provides legal advice or both. Generally, a lawyer is aiding a nonlawyer in the unauthorized practice of law whenever the lawyer effectively substitutes the legal knowledge and judgment of the nonlawyer for his or her own. Regardless of the task in question, a lawyer should never place a nonlawyer in situations in which he or she is called upon to exercise what would amount to independent professional judgment for the lawyer's client. Nothing in this limitation precludes paralegal representation of clients with legal problems whenever such is expressly authorized by law.2
\nIn order to enforce this limitation in the public interest, it is necessary to find a violation of the provisions prohibiting aiding a nonlawyer in the unauthorized practice of law whenever a lawyer creates the reasonable appearance to others that he or she has effectively substituted the legal knowledge and judgment of the nonlawyer for his or her own in the representation of the lawyer's client.
\nAs applied to the specific questions presented, a lawyer permitting a nonlawyer to give legal advice to the lawyer's client based on the legal knowledge and judgment of the nonlawyer rather than the lawyer, would be in clear violation of Standards of Conduct 24, 4, and 5. A lawyer permitting a nonlawyer to prepare and sign threatening correspondence to opposing counsel or unrepresented persons would be in violation of these Standards of Conduct because doing so creates the reasonable appearance to others that the nonlawyer is exercising his or her legal knowledge and professional judgment in the matter.
\nOPINION:
\nThis request for a Formal Advisory Opinion was submitted by the Investigative Panel of the State Disciplinary Board along with examples of numerous grievances regarding this issue recently considered by the Panel. Essentially, the request prompts the Formal Advisory Opinion Board to return to previously issued advisory opinions on the subject of the use of nonlawyers to see if the guidance of those previous opinions remains valid for current practice.3
\nThe primary disciplinary standard involved in answering the question presented is: Standard 24, ("A lawyer shall not aid a nonlawyer in the unauthorized practice of law.") As will become clear in this Opinion, however, Standard 4 ("A lawyer shall not engage in professional conduct involving dishonesty, fraud, deceit or willful misrepresentation.") and Standard 5 ("A lawyer shall not make any false, fraudulent, deceptive, or misleading communications about the lawyer or the lawyer's services.") are also involved.
\nIn interpreting these disciplinary standards as applied to the question presented, we are guided by Canon 3 of the Code of Professional Responsibility, "A Lawyer Should Assist in Preventing the Unauthorized Practice of Law," and, more specifically, the following Ethical Considerations: Ethical Consideration 3-2, Ethical Consideration 3-5, and Ethical Consideration 3-6.
\nIn Advisory Opinion No. 19, an Opinion issued before the creation of the Formal Advisory Opinion Board and the issuance of advisory opinions by the Supreme Court, the State Disciplinary Board addressed the propriety of Georgia lawyers permitting nonlawyer employees to correspond concerning "legal matters" on the law firm's letterhead under the nonlawyer's signature. The Board said that in determining the propriety of this conduct it must first define the practice of law in Georgia. In doing so, it relied upon the very broad language of a then recent Georgia Supreme Court opinion, Huber v. State, 234 Ga. 458 (1975), which included within the definition of the practice "any action taken for others in any matter connected with the law," to conclude that the conduct in question, regardless of whether a law suit was pending, constituted the practice of law.4 Any lawyer permitting a nonlawyer to engage in this conduct would be assisting in the unauthorized practice of law in violation of Standard 24, the Board said. The Board specifically limited this prohibition, however, to letters addressed to adverse or potentially adverse parties that, in essence, threatened or implied a threat of litigation. Furthermore, the Board noted that there was a broad range of activities, including investigating, taking statements from clients and other witnesses, conducting legal research, preparing legal documents (under "direct supervision of the member"), and performing administrative, secretarial, or clerical duties that were appropriate for nonlawyers. In the course of performing these activities, nonlawyers could correspond on the firm's letterhead under their own signature. This was permitted as long as the nonlawyer clearly identified his or her status as a nonlawyer in a manner that would avoid misleading the recipient into thinking that the nonlawyer was authorized to practice law.
\nWhatever the merits of the answer to the particular question presented, this Opinion's general approach to the issue, i.e., does the conduct of the nonlawyer, considered outside of the context of supervision by a licensed lawyer, appear to fit the broad legal definition of the practice of law, would have severely limited the role of lawyer-supervised nonlawyers to what might be described as in-house and investigatory functions. This Opinion was followed two years later, however, by Advisory Opinion No. 21, an Opinion in which the State Disciplinary Board adopted a different approach.
\nThe specific question presented in Advisory Opinion No. 21 was: "What are the ethical responsibilities of attorneys who employ legal assistants or paraprofessionals and permit them to deal with other lawyers, clients, and the public?" After noting the very broad legal definition of the practice of law in Georgia, the Board said that the issue was instead one of "strict adherence to a program of supervision and direction of a nonlawyer."
\nThis insight, an insight we reaffirm in this Opinion, was that the legal issue of what constitutes the practice of law should be separated from the issue of when does the practice of law by an attorney become the practice of law by a nonlawyer because of a lack of involvement by the lawyer in the representation. Under this analysis, it is clear that while most activities conducted by nonlawyers for lawyers are within the legal definition of the practice of law, in that these activities are "action[s] taken for others in . . . matter[s] connected with the law," lawyers are assisting in the unauthorized practice of law only when they inappropriately delegate tasks to a nonlawyer or inadequately supervise appropriately delegated tasks.
\nImplicitly suggesting that whether or not a particular task should be delegated to a nonlawyer was too contextual a matter both for effective discipline and for guidance, the Disciplinary Board provided a list of specific tasks that could be safely delegated to nonlawyers "provided that proper and effective supervision and control by the attorney exists." The Board also provided a list of tasks that should not be delegated, apparently without regard to the potential for supervision and control that existed.
\nWere we to determine that the lists of delegable and non-delegable tasks in Advisory Opinion No. 21 fully governed the question presented here, it would be clear that a lawyer would be aiding the unauthorized practice if the lawyer permitted the nonlawyer to prepare and sign correspondence to clients providing legal advice (because it would be "contact with clients . . . requiring the rendering of legal advice) or permitted the nonlawyer to prepare and sign correspondence to opposing counsel or unrepresented persons threatening legal action (because it would be "contacting an opposite party or his counsel in a situation in which legal rights of the firm's clients will be asserted or negotiated"). It is our opinion, however, that applying the lists of tasks in Advisory Opinion No. 21 in a categorical manner runs risks of both over regulation and under regulation of the use of nonlawyers and, thereby, risks both the loss of the efficiency nonlawyers can provide and the loss of adequate protection of the public from unauthorized practice. Rather than being applied categorically, these lists should instead be considered good general guidance for the more particular determination of whether the representation of the client has been turned over, effectively, to the nonlawyer by the lawyer permitting a substitution of the nonlawyer's legal knowledge and judgment for that of his or her own. If such substitution has occurred then the lawyer is aiding the nonlawyer in the unauthorized practice of law whether or not the conduct is proscribed by any list.
\nThe question of whether the lawyer has permitted a substitution of the nonlawyer's legal knowledge and judgment for that of his or her own is adequate, we believe, for guidance to attorneys in determining what can and cannot be delegated to nonlawyers. Our task, here, however, is broader than just giving guidance. We must also be concerned in issuing this opinion with the protection of the public interest in avoiding unauthorized practice, and we must be aware of the use of this opinions by various bar organizations, such as the Investigative Panel of the State Disciplinary Board, for determining when there has been a violation of a Standard of Conduct.
\nFor the purposes of enforcement, as opposed to guidance, it is not adequate to say that substitution of the nonlawyer's legal knowledge and judgment for that of his or her own constitutes a violation of the applicable Standards. The information for determining what supervision was given to the nonlawyer, that is, what was and was not a substitution of legal knowledge and judgment, will always be within the control of the attorney alleged to have violated the applicable Standards. To render this guidance enforceable, therefore, it is necessary to find a violation of the Standards prohibiting aiding a nonlawyer in the unauthorized practice of law whenever a lawyer creates the reasonable appearance to others that he or she has effectively substituted the legal knowledge and judgment of the nonlawyer for his or her own.
\nThus, a lawyer is aiding a nonlawyer in the unauthorized practice of law whenever the lawyer creates a reasonable appearance to others that the lawyer has effectively substituted the legal knowledge and judgment of the nonlawyer for his or her own. Regardless of the task in question, lawyers should never place nonlawyers in situations in which the nonlawyer is called upon to exercise what would amount to independent professional judgment for the lawyer's client. Nor should a nonlawyer be placed in situations in which decisions must be made for the lawyer's client or advice given to the lawyer's client based on the nonlawyer's legal knowledge, rather than that of the lawyer. Finally, nonlawyers should not be placed in situations in which the nonlawyer, rather than the lawyer, is called upon to argue the client's position. Nothing in these limitations precludes paralegal representation of clients with legal problems whenever such is expressly authorized by law.5
\nIn addition to assisting in the unauthorized practice of law by creating the reasonable appearance to others that the lawyer was substituting a nonlawyer's legal knowledge and judgment for his or her own, a lawyer permitting this would also be misrepresenting the nature of the services provided and the nature of the representation in violation of Standards of Conduct 4 and 5. In those circumstances where nonlawyer representation is specifically authorized by regulation, statute or rule of an adjudicatory body, it must be made clear to the client that they will be receiving nonlawyer representation and not representation by a lawyer.
\nApplying this analysis to the question presented, if by "prepare and sign" it is meant that the legal advice to be given to the client is advice based upon the legal knowledge and judgment of the nonlawyer, it is clear that the representation would effectively be representation by a nonlawyer rather than by the retained lawyer. A lawyer permitting a nonlawyer to do this would be in violation of Standards of Conduct 24, 4, and 5. A lawyer permitting a nonlawyer to prepare and sign threatening correspondence to opposing counsel or unrepresented persons would also be in violation of these Standards of Conduct because by doing so he or she creates the reasonable appearance to others that the nonlawyer is exercising his or her legal knowledge and professional judgment in the matter.
\nFor public policy reasons it is important that the legal profession restrict its use of nonlawyers to those uses that would improve the quality, including the efficiency and cost-efficiency, of legal representation rather than using nonlawyers as substitutes for legal representation. Lawyers, as professionals, are ultimately responsible for maintaining the quality of the legal conversation in both the prevention and the resolution of disputes. This professional responsibility cannot be delegated to others without jeopardizing the good work that lawyers have done throughout history in meeting this responsibility.
\nFootnotes
\n1. The term "nonlawyer" includes paralegals.
\n2. See footnote 5 infra.
\n3. In addition to those opinions discussed in this opinion, there are two other Advisory Opinions concerning the prohibition on assisting the unauthorized practice of law. In Advisory Opinion No. 23, the State Disciplinary Board was asked if an out-of-state law firm could open and maintain an office in the State of Georgia under the direction of a full-time associate of that firm who was a member of the State Bar of Georgia. In determining that it could, the Board warned about the possibility that the local attorney would be assisting the nonlicensed lawyers in the unauthorized practice of law in Georgia. In Formal Advisory Opinion No. 86-5, an Opinion issued by the Supreme Court, the Board was asked if it would be improper for lawyers to permit nonlawyers to close real estate transactions. The Board determined that it would be if the responsibility for "closing" was delegated to the nonlawyer without participation by the attorney. We view the holding of Formal Advisory Opinion No. 86-5 as consistent with the Opinion issued here.
\n4. The language relied upon from Huber v. State was later codified in O.C.G.A. §15-19-50.
\n5. For example, it is perfectly permissible for a nonlawyer, employed as a paralegal by a law firm or by a non-profit corporation, such as the Georgia Legal Service Program, doing business as a law firm, to represent his or her own clients whenever paralegal representation is permitted by law, as it would be if the representation were on a food stamp problem at an administrative hearing, or before the Social Security Administration, or in other circumstances where a statute or the authorized rules of the adjudicatory body specifically allow for and regulate representation or counsel by persons other than a lawyer. It must be made clear to the clients, of course, that what they will be receiving is paralegal representation and not representation by a lawyer. Nothing in this opinion is intended to conflict with regulation, by statute or rule of an adjudicatory body, of use of nonlawyers in such authorized roles.
State Bar of Georgia
\nIssued by the Supreme Court of Georgia
\nOn February 13, 1997
\nFormal Advisory Opinion No. 97-2
\n
\nFor references to Standard of Conduct 9(c), please see Comment [1] of Rule 7.5.
\n
\nFor references to Standard of Conduct 10, please see Rule 1.10 Comments.
\n
\nFor references to Standard of Conduct 11, please see Rule 7.5(b).
\n
\nFor references to Standard of Conduct 8, please see Rules 7.1 and 7.5(a).
\n
\nFor references to Standard of Conduct 9(a) (trade names), please see Rules 7.1, 7.5(a), and 7.5(e).
\n
\nFor references to Standard of Conduct 9(a) (lawyers practicing together under firm name), please see Comments [1] and [6] of Rule 1.10 and Comment [2] of Rule 7.5(e).
\n
\nFor reference to Standard of Conduct 9(b) (use of name of lawyer-pubic official in firm name), please see Rule 7.5(c).
\n
\nFor references to Standard of Conduct 10, please see Rule 7.5(d).
\n
\nFor references to Standard of Conduct 38, please see Rule 1.10(a).
\n
\nFor references to Standards of Conduct 35-38, please see Rules 1.7, 1.8(c), 1.9, and 2.2.
\n
\nFor an explanation regarding the addition of headnotes to the opinion, click here.
\n
\nQUESTION PRESENTED:
\n
\nMay an attorney practice in more than one law firm?
\n
\nSUMMARY ANSWER:
\n
\nAn attorney may practice simultaneously in more than one firm so long as those firms represent different ownership, the public and individual clients are clearly informed, and each firm adheres to all requirements of the Standards governing conflicts of interest and client confidences and secrets.
\n
\nOPINION:
\n
\nCorrespondent asks whether an attorney may practice in more than one law firm. Correspondent suggests several possible variations, including firms with overlapping partners, firms with different associates, and firms formed for different clients or different purposes. Each potential structure raises different problems under the Georgia Standards of Conduct. In addition to the structural concerns raised by Correspondent, overlapping firms create special problems of conflict of interest and client confidentiality.
\n
\nStandard 9(c) speaks to multiple structures: "A law firm shall not simultaneously practice law under more than one name." Thus firms composed of the same principals may not form parallel firms for the practice of law, whether by using different associates, or for different practice areas or different clients. Standard 9(c) prohibits only multiple practices by the same "law firm," however. Thus it does not forbid a member of one firm from joining with different principals simultaneously in a different practice or practices. Other Standards recognize and accept nontraditional practice forms. Standard 10 recognizes that "[a] partnership for the practice of law may be composed of one or more individual professional corporations." Standard 11 deals with interstate law firms in which personnel and admissions to practice are distinct from state to state.
\n
\nThe principal problem created by distinct but overlapping practice firms is actual or potential client confusion. The Georgia Standards uniformly protect against any firm structure or designation which creates that possibility. Standard 8 (firm names, printing and publications) and Standard 9(a) (trade names) forbid any "false, fraudulent, deceptive or misleading" usage. Standard 9(a) ties these concerns to client understandings "as to the lawyer or lawyers practicing under that name or to the type of practice in which the lawyer or lawyers are engaged." See also EC 2-11 (same concern more general). Standard 10 adds that "[a] lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are ... partners." See also Formal Advisory Opinion No. 93-1 ("special counsel" relationship "must be ... identified correctly so that clients and potential clients are fully aware"). In addition, Standard 9(b) prohibits using the name of a lawyer-public official "not actively and regularly practicing with the firm." See also EC 2-11 (same concern more general); Advisory Opinion No. 23 (disclosure requirements for office of multistate firm).
\n
\nIn short, a lawyer's engaging in multiple practices with distinct ownership is not prohibited by the Standards, so long as neither the general public nor any individual client is or may be misled thereby.
\n
\nThe precise steps which each firm must take to avoid being "false, fraudulent, deceptive or misleading" are beyond the scope of this opinion. If a lawyer practices in more than one active firm, he or she may be required to identify those firms in all communications to the general public, together with appropriate distinctions between or among them; and may need to explain to each client or potential client at the outset how that client will or would be served. The client needs to understand who is offering to perform or will perform services, and to whom the client should look for answers or redress in case of any problem.
\n
\nParticipation in simultaneous practices also raises concerns for conflict of interest and client confidences or secrets, arising from the overlapping lawyer's or lawyers' work in another firm or firms. The relevant Standards apply with full force to interrelated practices. Confidences and secrets must be protected regardless of where they were obtained. Individual lawyers are disqualified equally wherever they go. Standard 38 vicariously disqualifies each firm in case of any individual disqualification under Standards 35-37, regardless of which firm's work gives rise to individual disqualification. See also Formal Advisory Opinion No. 93-1 (vicarious disqualification in the similar context of "special counsel").
State Bar of Georgia
\nIssued by the Supreme Court of Georgia
\nOn October 29, 1998
\nFormal Advisory Opinion No. 98-4
\n
\nFor references to Standard of Conduct 8, please see Rule 7.5(a); (incorporating Rule 7.1).
\n
\nFor references to Standard of Conduct 9, please see Rules 7.1, 7.5(a), 7.5(e), 7.5(e)(1), and 7.5(e)(2).
\n
\nFor references to Standard of Conduct 35, please see Rule 1.7(a).
\n
\nFor references to Standard of Conduct 36, please see Rule 2.2(a).
\n
\nFor references to Standard of Conduct 37, please see Rule 2.2(a).
\n
\nFor references to Standard of Conduct 38, please see Rule 1.10.
\n
\nFor references to EC 2-11, please see Rule 7.5(a) (incorporating Rule 7.1), Rule 7.5(e)(1) and Comment [2] of Rule 7.5.
\n
\nFor references to EC 2-13, please see Rule 7.5(d) and Comment [1] of Rule 7.5.
\n
\nFor references to DR 5-105(B), please see Rule 1.7(a).
\n
\nFor references to DR 5-105(C), please see Rule 1.7(b), which includes additional procedural requirements.
Rule 1.7 is recited in this opinion; however, Rule 1.7 was amended on November 3, 2011, and now indicates that consent to representation of two clients with potentially conflicting interests must be “informed” and “confirmed in writing,” and be preceded by a separate writing that also advises the clients of “reasonably available alternatives” to the representation.
\n
\nFor references to DR 5-105(D), please see Rule 1.10(a).
\n
\nFor an explanation regarding the addition of headnotes to the opinion, click here.
QUESTION PRESENTED:
\n
\nIs it ethically proper for a lawyer to represent a criminal defendant when a co-defendant in the same criminal prosecution is represented by a second attorney who is listed on letterhead as "of counsel" to the same law firm?
\n
\nSUMMARY ANSWER:
\n
\nBecause an attorney who is held out to the public as "of counsel" should have a close, regular, personal relationship with the affiliated firm, the standards of conduct applicable to multiple representations by partners and associates of law firms, should also apply to "of counsel" attorneys. Accordingly, when an "of counsel" attorney would be required to decline or withdraw from multiple representations under Standards 35, 36 and 37, then under Standard 38, no partner, associate or other "of counsel" attorney of the principal firm may accept or continue such employment.
\n
\nOPINION:
\n
\nI. Use of the Term "Of Counsel" on Materials Intended for Public Distribution.
\n
\nThe use of the term "of counsel" to denote relationships between attorneys and law firms has increased in recent years. Traditionally the term was used to designate semi-retired lawyers who desired to maintain a regular association with a law firm for which they were previously a full-time attorney. Today, the term "of counsel" is used to describe a wide range of associations and relationships including lateral hires or attorneys who are in-between associate and partnership classifications. While the primary purpose of this opinion is not to limit or define the terms of such relationships, the Board does believe that some clarification is necessary to protect members of the public who may rely upon the "of counsel" designation in selecting legal representation.
\n
\nAlthough the Georgia Code of Professional Responsibility does not define the term "of counsel", the American Bar Association has issued a formal opinion which describes the core characteristics of the term as follows:
\n\n... A close, regular, personal relationship; but a relationship which is neither that of a partner (or its equivalent, a principal of a professional corporation), with the shared liability and/or managerial responsibility implied by that term; nor, on the other hand, the status ordinarily conveyed by the term 'associate', which is to say a junior non-partner lawyer, regularly employed by the firm.
\n
(Emphasis added). ABA Formal Advisory Opinion 90-357 (1990). The ABA also continues to adhere to aspects of its earlier opinion which prohibited the use of the term "of counsel" to designate the following relationships: (1) a relationship involving only a single case, (2) a relationship of forwarder or receiver of legal business, (3) a relationship involving only occasional collaborative efforts, and (4) relationship of an outside consultant. See ABA Formal Opinion 90-357 (1990) (reaffirming in part ABA Formal Opinion 330 (1972)). Other jurisdictions which have considered this issue have adhered to the ABA's description of the "of counsel" relationships. See Florida Professional Ethics Committee Opinion Nos. 94-7 (1995); State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 1993-129 and the New York State Bar Association Committee on Professional Ethics Opinion No. 262 (1972).
\n
\nThe Board is of the opinion that the use of the term "of counsel" on letterhead, placards, advertisements and other materials intended for public distribution should denote more than casual contact such as mere office-sharing arrangements and that requiring a close, regular, personal relationship between the "of counsel" attorney and the principal firm is in accordance with the reasonable expectations of the consuming public. Requiring attorneys who are held out to the public as "of counsel" to have a close, regular, personal relationship with the principal firm is also in keeping with well-established standards of conduct requiring lawyers to be scrupulous in the representation of their professional status and prohibiting attorneys from practicing under trade names which are false, fraudulent, deceptive or that would tend to mislead laypersons as to the identity of lawyers actually practicing in the firm. See Standards of Conduct 8 and 9 and EC 2-11 and EC 2-13.
\n
\nII. Conflicts Analysis for "Of Counsel" Relationships.
\n
\nThe issue as to whether or not a member of a law firm may represent a defendant who potentially has an adverse interest to a co-defendant in the same criminal prosecution and who is simultaneously being represented by an "of counsel" attorney to the same firm must be analyzed in light of the requirement that such an "of counsel" relationship be "close, regular and personal." The Board believes that the prudent and ethical course is for the attorneys involved to apply the same standards in analyzing this potential for conflict of representation as would be applied in more traditional relationships existing between associates and partners with other attorneys in their law firms.
\n
\nUnder these long-standing rules, an attorney is prohibited from continuing multiple employment if the exercise of his independent professional judgment on behalf of a client will be, or is likely to be, adversely affected by his representation of another client. See Standards of Conduct 35 and 36 and DR 5-105(B). If the lawyer is required to decline or withdraw from employment due to the reasons stated in Standards 35 and 36, then no partner or associate of his firm may accept or continue such employment. See Standard of Conduct 38 and DR 5-105(D). The standards do provide for an exception if it is obvious that the lawyer can adequately represent the interest of each of the clients and each client consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer's professional judgment on behalf of each client. See Standard of Conduct 37 and DR 5-105(C).
\n
\nIn addition to associates and partners of law firms, the Board believes that these are sound principles for "of counsel" attorneys to follow as well. This is especially true, given the requirement that attorneys listed as "of counsel" on letterhead and other materials distributed to the public have a close, regular, personal, relationship with the principal firm. Accordingly, when an "of counsel" attorney would be required to decline or withdraw from multiple representations under Standards 35, 36 and 37, then, under Standard 38, no partner, associate or other "of counsel" attorney of the principal firm may accept or continue such employment. This opinion is consistent with those reached by other jurisdictions which have addressed this issue. See State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 1993-129; Florida Professional Ethics Committee, Opinion 94-7 (1995); and Opinion 72-41 (1973)
The Coordinating Special Master shall have the following powers and duties:
\n(1) to establish requirements for and supervise Special Master and Hearing Officer training;
\n
(2) to assign cases to Special Masters and Hearing Officers from the pool provided in Bar Rule 4-209 (b);
\n
(3) to exercise all of the powers and duties provided in Bar Rule 4-210 when acting as a Special Master under subparagraph (8) below;
\n
(4) to monitor and evaluate the performance of Special Masters and Hearing Officers;
\n
(5) to remove Special Masters and Hearing Officers for such cause as may be deemed proper by the Coordinating Special Master;
\n
(6) to fill all vacancies occasioned by incapacity, disqualification, recusal or removal;
\n
(7) to administer Special Master and Hearing Officer compensation, if authorized as provided in Bar Rule 4-209.2 or Part A, Section 14 of the Rules Governing Admission to the Practice of Law in Georgia;
\n
(8) to hear pretrial motions when no Special Master has been assigned; and
\n
(9) to perform all other administrative duties necessary for an efficient and effective hearing system.
"},{"parentId":559,"version":2,"id":84,"name":"RULE 6.5. NONPROFIT & COURT-ANNEXED LIMITED LEGAL SERVICES PROGRAMS","bodyText":"(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, normally through a one-time consultation, without expectation by either lawyer or the client that the lawyer will provide continuing representation in the matter and without expectation that the lawyer will receive a fee from the client for the services provided:
\n(b) Except as provided by paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.
\n(c) The recipient of the consultation authorized under paragraph (a) is, for purposes of Rule 1.9, a former client of the lawyer providing the service, but that lawyer's disqualification is not imputed to lawyers associated with the lawyer for purposes of Rule 1.10.
\nThe maximum penalty for a violation of this Rule is a public reprimand.
\nComment
\n[1] Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services—such as consultation clinics for advice or help with 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.
[2] A lawyer who provides free 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.
\n[3] 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.
\n[4] Because the limited nature of 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.
\n[5] 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.
\n
(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, normally through a one-time consultation, without expectation by either lawyer or the client that the lawyer will provide continuing representation in the matter and without expectation that the lawyer will receive a fee from the client for the services provided:
\n(b) Except as provided by paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.
\n(c) The recipient of the consultation authorized under paragraph (a) is, for purposes of Rule 1.9, a former client of the lawyer providing the service, but that lawyer's disqualification is not imputed to lawyers associated with the lawyer for purposes of Rule 1.10.
\nThe maximum penalty for a violation of this Rule is a public reprimand.
\nComment
\n[1] Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services—such as consultation clinics for advice or help with 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.
[2] A lawyer who provides free 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.
\n[3] 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.
\n[4] Because the limited nature of 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.
\n[5] 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.
\n
(a) Definitions
\nAbsent Attorney – a member of the State Bar of Georgia (or a foreign or domestic lawyer authorized to practice law in Georgia) who shall have disappeared, died, become disbarred, disciplined or incarcerated, or become so impaired as to be unable to properly represent his or her clients or as to pose a substantial threat of harm to his or her clients or the public as to justify appointment of a Receiver hereunder by the Supreme Court of Georgia.
\n(b) Appointment of Receiver
\n(1) Upon a final determination by the Supreme Court of Georgia, on a petition filed by the State Bar of Georgia, that an attorney has become an Absent Attorney, and that no partner, associate or other appropriate representative is available to notify his or her clients of this fact, the Supreme Court of Georgia may order that a member or members of the State Bar of Georgia be appointed as Receiver to take charge of the Absent Attorney's files and records. Such Receiver shall review the files, notify the Absent Attorney's clients and take such steps as seem indicated to protect the interests of the clients, and the public. A motion for reconsideration may be taken from the issuance or denial of such protective order by the respondent, his or her partners, associates or legal representatives or by the State Bar of Georgia.
\n(2) If the Receiver should encounter, or anticipate, situations or issues not covered by the Order of appointment, including but not limited to, those concerning proper procedure and scope of authority, the Receiver may petition the Supreme Court of Georgia or its designee for such further order or orders as may be necessary or appropriate to address the situation or issue so encountered or anticipated.
\n(3) The receiver shall be entitled to release to each client the papers, money or other property to which the client is entitled. Before releasing the property, the Receiver may require a receipt from the client for the property.
\n(c) Applicability of Attorney-Client Rules
\n(1) Confidentiality – The Receiver shall not be permitted to disclose any information contained in the files and records in his or her care without the consent of the client to whom such file or record relates, except as clearly necessary to carry out the order of the Supreme Court of Georgia or, upon application, by order of the Supreme Court of Georgia.
\n(2) Attorney-Client Relationship; Privilege – The Receiver relationship standing alone does not create an attorney-client relationship between the Receiver and the clients of the Absent Attorney. However, the attorney-client privilege shall apply to communications by or between the Receiver and the clients of the Absent Attorney to the same extent as it would have applied to communications by or to the Absent Attorney.
\n(d) Trust Account
\n(1) If after appointment the Receiver should determine that the Absent Attorney maintained one or more trust accounts and that there are no provisions extant that would allow the clients, or other appropriate entities, to receive from the accounts the funds to which they are entitled, the Receiver may petition the Supreme Court of Georgia or its designee for an order extending the scope of the Receivership to include the management of the said trust account or accounts. In the event the scope of the Receivership is extended to include the management of the trust account or accounts, the Receiver shall file quarterly with the Supreme Court of Georgia or its designee a report showing the activity in and status of said accounts.
\n(2) Service on a bank or financial institution of a copy of the order extending the scope of the Receivership to include management of the trust account or accounts shall operate as a modification of any agreement of deposit among such bank or financial institution, the Absent Attorney and any other party to the account so as to make the Receiver a necessary signatory on any trust account maintained by the Absent Attorney with such bank or financial institution. The Supreme Court of Georgia or its designee, on application by the Receiver, may order that the Receiver shall be sole signatory on any such account to the extent necessary for the purposes of these Rules and may direct the disposition and distribution of client and other funds.
\n(3) In determining ownership of funds in the trust accounts, including by subrogation or indemnification, the Receiver should act as a reasonably prudent lawyer maintaining a client trust account. The Receiver may (1) rely on a certification of ownership issued by an auditor employed by the Receiver; or (2) interplead any funds of questionable ownership into the appropriate Superior Court; or (3) proceed under the terms of the Disposition of Unclaimed Property Act (O.G.C.A. §44-12-190 et seq.). If the Absent Attorney’s trust account does not contain sufficient funds to meet known client balances, the Receiver may disburse funds on a pro rata basis.
\n(e) Payment of Expenses of Receiver
\n(1) The Receiver shall be entitled to reimbursement for actual and reasonable costs incurred by the Receiver for expenses, including, but not limited to, (i) the actual and reasonable costs associated with the employment of accountants, auditors and bookkeepers as necessary to determine the source and ownership of funds held in the Absent Attorney’s trust account, and (ii) reasonable costs of secretarial, postage, bond premiums, and moving and storage expenses associated with carrying out the Receiver’s duties. Application for allowance of costs and expenses shall be made by affidavit to the Supreme Court of Georgia, or its designee, who may determine the amount of the reimbursement. The application shall be accompanied by an accounting in a form and substance acceptable to the Supreme Court of Georgia or its designee. The amount of reimbursement as determined by the Supreme Court of Georgia or its designee shall be paid to the Receiver by the State Bar of Georgia. The State Bar of Georgia may seek from a court of competent jurisdiction a judgment against the Absent Attorney or his or her estate in an amount equal to the amount paid by the State Bar of Georgia to the Receiver. The amount of reimbursement as determined by the Supreme Court of Georgia or its designee shall be considered as prima facie evidence of the fairness of the amount, and the burden of proof shall shift to the Absent Attorney or his or her estate to prove otherwise.
\n(2) The provision of paragraph (1) above shall apply to all Receivers serving on the effective date of this Rule and thereafter.
\n(f) Receiver-Client Relationship
\nWith full disclosure and the informed consent, as defined in Bar Rule 1.0 (h), of any client of the Absent Attorney, the Receiver may, but need not, accept employment to complete any legal matter. Any written consent by the client shall include an acknowledgment that the client is not obligated to use the Receiver.
\n(g) Unclaimed Files
\n(1) If upon completion of the Receivership there are files belonging to the clients of the Absent Attorney that have not been claimed, the Receiver shall deliver them to the State Bar of Georgia. The State Bar of Georgia shall store the files for six years, after which time the State Bar of Georgia may exercise its discretion in maintaining or destroying the files.
\n(2) If the Receiver determines that an unclaimed file contains a Last Will and Testament, the Receiver may, but shall not be required to do so, file said Last Will and Testament in the office of the Probate Court in such county as to the Receiver may seem appropriate.
\n(h) Professional Liability Insurance
\nOnly attorneys who maintain errors and omissions insurance that includes coverage for conduct as a Receiver may be appointed to the position of Receiver.
\n(i) Requirement of Bond
\nThe Supreme Court of Georgia or its designee may require the Receiver to post bond conditioned upon the faithful performance of his or her duties.
\n(j) Immunity
\n(1) The Supreme Court of Georgia recognizes the actions of the State Bar of Georgia and the appointed Receiver to be within the court's judicial and regulatory functions, and being regulatory and judicial in nature, the State Bar of Georgia and Receiver are entitled to judicial immunity. Any person serving as a Receiver under these rules shall be immune from suit for any conduct undertaken in good faith in the course of his or her official duties.
\n(2) The immunity granted in paragraph (1) above shall not apply if the Receiver is employed by a client of the Absent Attorney to continue the representation.
\n(k) Service
\nService under this Rule may be perfected under Bar Rule 4-203.1.
\n
The ICLE Board shall have the following powers and duties:
\n