Indiana Law Review Indiana Rules of Professional Conduct: A Comparison with the Old Code Danielle Oates Sheff* Fran Quigley** L Background and Overview The Indiana Rules of Professional Conduct are based almost entirely on the American Bar Association (ABA) Model Rules of Professional Conduct.^ Because of concern over the efficiency of the Model Rules of Professional Responsibility, upon which Indiana and other states had based professional conduct codes, the ABA in 1977 appointed a com- mission chaired by Robert J. Kutak to draft new rules. ^ The Model Rules went through several changes in the stages between the draft prepared by the Kutak Commission and the final version of the Model Rules adopted by the ABA House of Delegates in August of 1983. A brief overview of some of these changes gives light to the concerns about attorney conduct held by both the members of the Kutak Commission and the ABA Delegates as a whole. In the Discussion Draft of the Model Rules, the language of Rule 6.1 * 'required'' that attorneys perform pro bono work.^ However, in the final version of the Model Rules, Rule 6.1 was tempered and attorneys were only '^encouraged" to perform or support pro bono work.'* Next, Discussion Draft Model Rule 1.5 sought to require that all fee arrange- ments be in writing.^ By the time the ABA House of Delegates approved the final draft. Rule 1.5 required only that contingent fee arrangements be in writing.^ Further, attorneys employed by an organization who learned of an intended violation of law by an officer or employee of *Law Clerk to the Honorable George B. Hoffman Jr., Indiana Court of Appeals. B.A., Indiana University-Purdue University-Indianapolis, 1982; J.D., Indiana University School of Law-Indianapolis, 1984. **Law Clerk to the Honorable George B. Hoffman Jr., Indiana Court of Appeals. B.A., Hanover College, 1984; J.D., Indiana University-Indianapolis, 1987. The authors wish to express their appreciation to Sheldon Breskow for his assistance in the preparation of this article. 'Annual Meeting Highlights, 29 Res Gestae 284, 285 (December 1985). ^Hodes, Three Peas in a Pod, 35 U. Miami L. Rev. 739, 745 (1981). 'Model Rules of Professional Conduct Rule 6.1 (Discussion Draft 1980). "Model Rules of Professional Conduct Rule 6.1 (1983). [Hereinafter Model RULESl . ^MoDEL Rules, supra note 4, Rule 1.5 (Discussion Draft 1980). *MoDEL Rules, supra note 4, Rule 1.5. 307 308 INDIANA LAW REVIEW [Vol. 21:307 the organization were authorized by the Discussion Draft of the Model Rules to disclose client confidences "to the extent necessary" if they were unsuccessful in seeking a suitable remedy within the organization.^ The final version of Model Rule 1.13 calls for the resignation of or- ganization attorneys if, after referral to the highest authority in the organization, the organization insists upon the illegal action.^ The Model Rules either have already replaced or are in the process of replacing the various Codes of Professional Responsibility in a majority of the states.^ Twenty-three states have adopted a version of the ABA's Model Rules. A version of the Model Rules is currently pending before the highest courts of eleven states. Further, ten other states are currently employing study committees to review the Model Rules. '^ The Indiana Supreme Court's adoption of the Rules of Professional Conduct effective January 1, 1987," ended a review process that featured lively debate over client confidentiality rules and resulted in a set of Rules that differs from the Model Rules in two areas. The Indiana State Bar Association's Code of Conduct Study Com- mittee reviewed the ABA's Model Rules and recommended their adoption to the Indiana State Bar Association (ISBA) House of Delegates in 1985 with only two exceptions. ^^ Adopted without debate^^ was the proposal to retain Indiana's rules regarding attorney advertising. ^"^ The Committee's recommended revision of Model Rule 1.6 on client confidentiality, how- ever, was much more controversial and met with resistance from the ISBA House of Delegates. '^ The Indiana debate over Rule 1.6 began even before the Code of Conduct Study Committee submitted its proposed revision to the ISBA House of Delegates. In a 1985 article, Frederick E. Rakestraw, co- chairman of the Code of Conduct Study Committee, explained his views on the revelation of client confidences.*^ Rakestraw believed that the ABA's Model Rules did not permit attorneys enough discretion when revealing client confidences in the event that the client planned to commit ^MoDEL Rules, supra note 4, Rule 1.13 (Discussion Draft 1980). *MoDEL Rules, supra note 4, Rule 1.13. 'Information release from American Bar Association (May 28, 1987). "Indlvna Rules of Professional Conduct (1987) [hereinafter Rules]. '^Rakestraw, Proposed Model Rules of Professional Conduct, 28 Res Gestae 475, 475-76 (March 1985). 'Ud. '^Annual Meeting Highlights, 29 Res Gestae 284, 285-86 (December 1985). ''Id. '^Rakestraw, Proposed Model Rules of Professional Conduct, 28 Res Gestae 475 (March 1985). 1988] RULES OF PROFESSIONAL CONDUCT 309 an illegal act.^^ Model Rule 1.6 allows a lawyer to reveal information pertaining to the representation of a client to the extent the lawyer believes necessary "to prevent the client from committing a criminal act . . . likely to result in imminent death or substantial bodily harm," as well as in legal proceedings between the lawyer and client and situations where the lawyer is the object of a criminal charge or civil claim based upon conduct in which the cHent was involved.'^ The Committee's pro- posed Rule 1.6 allowed a lawyer to reveal client confidences to the extent reasonably necessary "to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably beheves is likely to result in imminent death or substantial bodily harm, or in substantial injury to the financial interests or property of another.' '^^ This amendment was designed to maintain consistency with Disciplinary Rule 7- 102(B) of the Code of Professional Responsibility, which charged a lawyer with the responsibility to call upon a cHent to rectify a fraud perpetrated in the course of the lawyer's representation of the client and, faihng that, to reveal the fraud "to the affected person or tribunal. "^^ Leon R. Kaminski and John T. Sharpnack co-authored an article in which they urged that the Code of Conduct Study Committee's proposed amendments to Model Rule 1.6 be rejected by the ISBA House Delegates.2^ Kaminski and Sharpnack expressed their fear that the Com- mittee's proposal to expand the Model Rule's exceptions to attorney- client confidentiality would have the effect of undermining clients' con- fidence in attorneys and discourage clients from making full disclosure of their contemplated conduct to attorneys.^^ Kaminski and Sharpnack also shared the opinion that the more disclosure the Rules of Professional Conduct permitted, the more likely compulsory disclosure or liability for damages could be imposed upon an attorney who did not disclose information that could prevent financial injury. ^^ The ISBA House of Delegates reviewed the proposed Rules of Pro- fessional Conduct in the course of its annual meeting in October of 1985 and the amendments to Model Rule 1.6 were the only debated provisions of the Committee's proposed Rules.^"* Despite Rakestraw's ''Id. at 476-79. '*MoDEL Rules, supra note 4, Rule 1.6. "Rakestraw, Proposed Model Rules of Professional Conduct, 28 Res Gestae 475, 476 (March 1985) (emphasis added). ^Indiana Code of Professional Responsibility DR 7- 102(B) (1971) [hereinafter Code]. ^'Kaminski and Sharpnack, '\ . . to preserve inviolate the secrets of my client . . . ." 28 Res Gestae 480 (March 1985). "M at 481. ^^Id. at 481-82. "^Annual Meeting Highlights, 29 Res Gestae 284, 285 (December 1985). 310 INDIANA LAW REVIEW [Vol. 21:307 argument before the delegates that the Committee's amendments were necessary to prevent '*a fraud to a widow and her Ufe fortune" among other financial misdeeds, a motion to delete the Committee's amendments was approved and the proposed Rules were sent to the Indiana Supreme Court with Rule 1.6 in conformity with the ABA's Model Rules.^^ The Rules of Professional Conduct adopted by the Indiana Supreme Court included the following provisions concerning confidentiality of information received from a client: (a) A lawyer shall not reveal information relating to rep- resentation of a cUent unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b). (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing any criminal act; or (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to estabUsh a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. ^^ Indiana's Rule 1.6 thus differs from the ABA Model Rule 1.6 in that an Indiana attorney is permitted to reveal client confidences if it is reasonably necessary to do so in order to prevent any criminal act,^^ while the Model Rule 1.6 allows such disclosure only if necessary to prevent a criminal act ''that the lawyer beUeves is likely to result in imminent death or substantial bodily harm."^^ Rule 1.6, as adopted by the Indiana Supreme Court, thus more closely resembles in its application the version of Rule 1.6 proposed by the ISBA Code of Conduct Study Committee than the version submitted by the ISBA House of Delegates. The practical effect of Indiana's deviation from the ABA's Model Rules is that Indiana attorneys are now vested with broad discretion to reveal more client confidences regarding future criminal activity than ever before authorized by the Code of Professional Responsibility.^^ The "M at 285-86. ^*RuLES, supra note 11, Rule 1.6. ''Id. 2*MoDEL Rules, supra note 4, Rule 1.6. ^'RuLES, supra note 11, Rule 1.6. It is interesting to note that the expansion from crimes against the person to any crime would include such crimes as deception, Ind. Code § 35-46-3-2 (Supp. 1983), nonsupport of a dependent, Ind. Code § 35-42-4-3 (1982), and many federal criminal statutes such as securities fraud. 1988] RULES OF PROFESSIONAL CONDUCT 311 Comment accompanying Rule 1.6 provides the only limitation to the scope of the attorney's discretion by stating that *'a disclosure adverse to the cUent's interest should be no greater than the lawyer reasonably believes necessary for the purpose. "^^ In summary, attorneys are not subject to disciplinary action for the failure to commit time or financial support to pro bono publico service; only contingent fee agreements need be in writing; attorneys employed by organizations may be required to resign if the organization's poli- cymakers refuse to alter illegal conduct; and, attorneys in Indiana have wide latitude in disclosing client confidences to prevent any criminal act. Also noteworthy is Indiana's decision to retain its former rules on advertising rather than adopting the more relaxed standards in the Model Rules. Besides the more prominent changes, minor adjustments of both a substantive and procedural nature have been made. With few exceptions the new Rules have streamlined the somewhat eclectic compilation of prohibitions and mandates found in their predecessor, the Code of Professional Responsibility. The most obvious nonsubstantive change in the newly adopted Rules of Professional Conduct, as compared to the former Code of Professional Responsibility, is the format. The Code was based upon nine Canons. ^^ The broad statements of the Canons were further divided into Ethical Considerations and DiscipUnary Rules. ^^ The Ethical Considerations represented a standard of behavior desireable for lawyers, yet not mandatory. ^^ The Disciplinary Rules amplified the Canons with directives which stated the minimum level of competency required of attorneys. ^^ The Rules have abandoned the Canons and instead rdy on eight general topic areas.^^ Despite the rejection of ethical considerations and disciplinary rules, the Rules are cast both in imper- atives such as "shall" and "shall not" and in permissive terms such as "may."^^ The Comments to the Rules of Professional Conduct, which were adopted by the Indiana Supreme Court, do not carry the potential for disciplinary action even wlien presented in terms such as "should. "^^ This article is devoted to a comparison between the former Code of Professional Responsibility and the new Rules of Professional Conduct. ^°RuLEs, supra note 11, Rule 1.6 comment. ^^See Code, supra note 20. "Code, supra note 20, preliminary statement. ''Id. "See Rules, supra note 11,. ^*RuLES, supra note 11, Scope. ''Id. 3 1 2 INDIANA LA W REVIEW [Vol . 2 1 : 307 II. Discussion A. Client-Lawyer Relationship Sixteen rules comprise * 'Client-Lawyer Relationship," the first topic area in the newly adopted Rules of Professional Conduct. ^^ Rule 1.1 states: "Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representa- tion. "^^ The accompanying Comment urges that new lawyers can be as competent as more experienced lawyers because basic to any legal un- dertaking is the ability to determine the legal issues involved. "^^ The Comment goes on to encourage participation in continuing legal edu- cation. The Comment acknowledges that, following careful self-assess- ment of a lawyer's knowledge and experience, and after an assessment of the complexities of the subject matter, the lawyer may refer the matter to or consult with an attorney of estabUshed competence in the area.'*' Rule 1.1 along with its comments addresses the same topic area as Disciplinary Rule 6- 101 (A). ^^ Rule 1.2(a) requires attorneys to accede to clients' wishes regarding whether to settle civil actions, and in criminal cases whether to accept a plea agreement, waive jury trial or whether the client will testify."*^ The Comment instructs lawyers to consult with clients regarding all aspects of a case."^ However, while clients determine the goals of rep- resentation, it is the attorney's responsibility, guided by professional obHgations, to control the means of obtaining the clients' goals. "^^ Rule 1.2 (a) has no direct parallel in the Code. However, Ethical Considerations 7-7 and 7-8, and Disciplinary Rule 7- 101 (A)(1) together counsel attorneys to allow clients to make decisions which depend upon "non-legal factors" while "avoiding offensive tactics. ""^^ Rule 1.2(a) more clearly defines the decision-making roles of attorneys and clients, than did the relevant portions of the Code. The Comment to Rule 1.2(a) advises that if a client appears to suffer from a mental disability or is otherwise unable to aid in the '*RuLES, supra note 11, Rule 1. ^^RuLES, supra note 11, Rule 1.1. '^RuLES, supra note 11, Rule 1.1 comment. ''Id. ^^CoDE, supra note 20, DR 6-101(A)(l), (2). "^RuLES, supra note 11, Rule 1.2(a). "^RuLES, supra note 11, Rule 1.2(a) comment. 45 /w'Id. ^CoDE, supra note 20, EC 7-7, -8, DR 7-101(A)(l). 1988] RULES OF PROFESSIONAL CONDUCT 313 decision-making process, the attorney should refer to Rule 1.14/^ Under Rule 1.14, when the lawyer perceives the client as being incapable of attending to the client's own interests, the lawyer may request the appointment of a guardian or take other measures/^ The Comment to Rule 1.14 readily acknowledges the precarious footing upon which lawyers tread in assessing clients' varying degrees of competence. "^^ Further, the Comment would impose overseer-like duties upon the lawyer, to take steps to prevent or rectify bad acts of a legal representative in accordance with Rule 1.2(d).^° The Comment raises another complicating factor in that attorneys need to consider the adverse affects upon clients' interests if a disability is disclosed.^* In comparison, Ethical Consideration 7-12 allowed attorneys to make decisions for impaired clients unless the client was legally required to make the decision." Rule 1.2(b) is less a rule and more in the nature of an inducement for lawyers to accept clients who are unpopular or whose cases are unsavory." The Rule is self-explanatory. It provides that representation of a client ''does not constitute an endorsement of the cHent's political, economic, social or moral views or activities. "^'^ This Rule has no correlative disciplinary rule in the Code. Also without a counterpart in the Code is Rule 1.2(c) which allows an attorney to "Hmit the objectives of the representation if the client consents after consultation. "^^ Review of its Comment suggests that Rule 1.2(c) may be directed to the rather new pre-paid legal service plans as well as attorneys who represent insureds on behalf of insurance com- panies.^^ Any situation where representation is limited requires full dis- closure of the purpose for which the lawyer has been retained and of the extent of the limitations on representation.^^ The Comment also condemns Hmiting the objectives or means of representation that the ''lawyer regards as repugnant or imprudent. "^^ In limiting the scope of '*The Comment suggests seeking the advice of a trained diagnostician. Rules, supra note 11, Rule 1.2(a) comment (1987). The attorney should attempt to proceed as in a normal lawyer-client relationship. Id. '^^RuLES, supra note 11, Rule 1.14. "'Rules, supra note 11, Rule 1.14 comment. ''Id. "Code, supra note 20, EC 7-12. "Rules, supra note 11, Rule 1.2(b). ''Id. "Rules, supra note 11, Rule 1.2(c). ^*RuLES, supra note 11, Rule 1.2(c) comment. ''Id. '^Id. See also Rules, supra note 11, Rule 6.2 (appears on its face to be in contrast with the duties imposed by Rule 1.2(a), Rules, supra note 11, Rule 1.2(a). 314 INDIANA LAW REVIEW [Vol. 21:307 representation a lawyer must be guided by the competency standards imposed by Rule 1.1.^^ Rule 1.2(d) prohibits counseling or assisting a client in conduct that is criminal or fraudulent but does allow an attorney to counsel the client as to ramifications of proposed conduct or to explore the 'Validity, scope, meaning or application" of a law.^ The Comment notes that an attorney's position is especially delicate when the client has embarked upon the illegal course of action/' Portions of Rule 1.2(d) echo ethical considerations and disciplinary rules found in the Code. Disciplinary Rule 7- 102(A)(7) precluded counseling or assisting a client in illegal or fraudulent conduct.^^ Disciplinary Rule 7-106 prohibited advising a client to disregard an order or rule of a tribunal, but allowed a good faith challenge of the order or rule's validity .^^ A lawyer could not help create or preserve false evidence under Disciplinary Rule 7-1 02(A)(6).^ Ethical Consideration 7-5 stated that '*A lawyer should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment thereafter. "^^ Rule 1.2(e) states "When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarcMng the relevant limitations on the lawyer's conduct. "^^ No comment accompanies this section: It may be difficult for an attorney to determine what the client ''expects." Two disciplinary rules found in the Code address the same subject area. Disciplinary Rule 2-1 10(C)(1)(c) demanded withdrawal from representation when a client insisted the attorney act in an illegal manner or in a manner prohibited by the Code.^^ Any statement or implication that an attorney could improperly influence a court, legislature, or pubHc official was forbidden by Disciplinary Rule 9-101(C).^^ In summary. Rule 1.2 embodies a broad range of concerns endemic to the client-lawyer relationship. Special attention to Rule 1.2 is warranted when an attorney is establishing the ground work for representation of a new client. Rule 1.3 states, "A lawyer shall act with reasonable diligence and promptness in representing a client. "^^ As the Comment reminds lawyers, "Rules, supra note 11, Rule i.2(c) comment. ^RuLES, supra note 11, Rule 1.2(a). ^'RuLES, supra note 11, Rule 1.2(d) comment. However, Rule 1.6 may allow disclosure. See supra note 26 and accompanying text. "Code, supra note 20, DR 7- 102(A)(7). "Code, supra note 20, DR 7-106. «CoDE, supra note 20, DR 7- 102(A)(6). "Code, supra note 20, EC 7-5. **RuLES, supra note 11, Rule 1.2(c). *'Code, supra note 20, DR 2-110. <*«Code, supra note 20, DR 9- 101(c). *'RuLES, supra note 11, Rule 1.3. 1988] RULES OF PROFESSIONAL CONDUCT 315 *'no ... shortcoming is more widely resented than procrastination."^*^ Neglect of a legal matter is the most common complaint by clients. ^^ Rule 1.3 more particularly sets out the considerations that were found in Disciplinary Rules 6-101(A)(3),^2 7-101(A)(l),^3 ^nd 7- 101 (A)(3),^^ and Canon 7.^^ The prohibition against neglecting **a matter entrusted" to the lawyer found in Disciplinary Rule 6- 101 (A)(3) and the requirement that a lawyer '* represent a client zealously within the bounds of law" prescribed in Canon 7 are most closely analogous to Rule 1.3. Communicating with a client regarding the status of a legal matter and explaining legal considerations sufficiently to allow the client to make necessary decisions in the representation^^ form the basis of Rule 1.4.^^ The Comment recommends against full disclosure of information to clients when the client may react inappropriately as in the case of mental infirmity or when the lawyer is under court order or rule not to divulge information as required under Rule 3. 4(c). ^^ While the Code has no direct counterpart to Rule 1.4, Disciplinary Rule 9- 102(B) required notification of the receipt of a client's funds or property.^^ Additionally, Ethical Considerations 7-8 and 9-2 urged lawyers to inform clients of relevant considerations prior to the client making decisions and to keep clients abreast of developments in their legal matters. ^° Types of fee arrangements and the factors which should be considered when determining a fee are the subjects of Rule 1.5.^^ Rule 1.5 specifically defines perimeters that were implicit in the Code. The overriding concern regarding fees is reasonableness. ^^ Also, a lawyer should consider: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the Ukelihood, if apparent to the client, that the accept- ^°RuLES, supra note 11, Rule 1.3 comment. ^'31 Res Gestae 162 (October 1987) (statistics on complaints referred to Disciplinary Commission of the Supreme Court of Indiana). '^CoDE,' supra note 20, DR 6-101(A)(3). "Code, supra note 20, DR 7-101(A)(l). ^^CoDE, supra note 20, DR 7-101(A)(3). ^^CoDE, supra note 20, DR 7-101(A)(3). ^*The Comment to Rule 1.4 recommends review of Rule 1.2(a) regarding client decisions. Rule 1.14 regarding mentally disabled clients, and Rule 1.13 regarding corporate clients. Rules, supra note 11, Rule 1.4 comment. ^^RuLES, supra note 11, Rule 1.4. ^*RuLES, supra note 11, Rule 1.4 comment. ^'CoDE, supra note 20, DR 9- 102(B). «°CoDE, supra note 20, EC 7-8, 9-2. *'RuLES, supra note 11, Rule 1.5. 316 INDIANA LAW REVIEW [Vol. 21:307 ance of the particular employment will preclude other employ- ment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. ^^ The Comment notes that the underlying basis for a fee need not be fully disclosed to a client, but factors reUed upon directly must be disclosed. ^^ When initially informing a client about fees it may be suf- ficient to discuss with the client hourly rates, a fixed fee or an estimated fee.*^ The latter should be altered as circumstances require.^^ Disciplinary Rule 2- 105(A) prohibited charging or collecting excessive or illegal fees.^^ The factors to consider when determining the amount of a fee in Rule 1.5(a) are identical to those recited in Disciplinary Rule 2-105(B).^^ Rule 1.5(b), aimed at the representation of clients who the lawyer does not regularly represent, requires disclosure of the terms or rate of the fee prior to or soon after representation begins. ^^ The Rule encourages written statements regarding fees.^ If a fee is paid in advance, the Comment requires return of unearned portions when the lawyer-client relationship ends.^^ It may be acceptable for an attorney to receive property as payment of a fee. The attorney must be mindful of the provisions of the Rule forbidding the acquisition of a proprietary interest in the subject matter of the representation, except to the extent that a contingent fee is allowed or an attorney's lien to secure fees may be sought. ^^ Although the services rendered may be commensurate with the client's ability to pay, a client should not be placed in a position of ''Id. *^RuLES, supra note 11, Rule 1.5 comment. '^Id. «^CoDE, supra note 20, DR 2-105(A). «»CoDE, supra note 20, DR 2-105(B). »^RuLES, supra note 11, Rule 1.5(b). '"Rules, supra note 11, Rule 1.5(b) comment. "M Rule 1.16(d) requires a refund of an unearned advance payment when repre- sentation is terminated. Rules, supra note 11, Rule 1.16(d). '^RuLES, supra note 11, Rule 1.5(b) comment. 1988] RULES OF PROFESSIONAL CONDUCT 317 compromising a legal matter or bargaining for further services. ^^ Rule 1.5(b) more strongly advises written fee agreements than did the Code. No disciplinary rule directly embraces the concerns found in Rule 1.5(b). However, Ethical Consideration 2-19 did suggest written statements as to the fee, especially in contingent fee arrangements. If a dispute arises concerning fees, a lawyer should submit to any established procedures for resolving such disputes. ^"^ Contingent fee agreements must be in writing pursuant to Rule 1.5(c).^^ The agreement must contain the method of calculating the fee, taking into consideration possible settlement, various levels of litigation and whether expenses are deducted prior to determining the contingent fee.^^ The Rule also requires a written statement of the outcome of the client's action.^^ However, Rule 1.5(d) prohibits contingent fee agreements in any matter concerning the dissolution of a marriage or in criminal cases. ^^ The Comment cautions attorneys to offer alternatives to con- tingent fees when a contingent fee may be unsuitable. ^^ In comparison, Disciplinary Rule 2- 105(c) prohibited contingent fee arrangements when the lawyer represented criminal defendants. ^^ Rule 1.5(e) concerns division of fees between lawyers not associated in the same firm.'^^ The following circumstances, stated in the conjunctive, must be present before division of fees should occur: (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; (2) the client is advised of and does not object to the participation of all the lawyers involved; and (3) the total fee is reasonable. ^^^ The most significant alteration in the division of fees when compared to the Code is the provision in Rule 1.5(e)(1) allowing division of fees without regard to proportion of services if the attorneys assume joint responsibility for the representation. Because the Code made no such provision the Rule more accurately reflects lawyers' practices. ''Id, '^RuLES, supra note 11, Rule 1.5(c). ^Id. 'Id. "''Id. ''Rules, supra note 11, Rule 1.5(d) comment. •°°CoDE, supra note 20, DR 2-105(c). '"'Rules, supra note 11, Rule 1.5(e). '"^Id. 318 INDIANA LAW REVIEW [Vol. 21:307 Rule 1.7 observes general conflict of interest considerations when a lawyer accepts employment. ^^^ A lawyer should not represent a client if doing so could negatively affect another client's interest.'^ Neither should the lawyer accept employment if another client's interests or the lawyer's personal interests could burden successful representation of the new client. ^^^ The Rule recognizes exceptions when the lawyer reasonably believes that no client's interests would suffer and the clients consent to the representation.*^ If a lawyer represents multiple clients in a single transaction, the lawyer must disclose the negative and positive implications of joint representation.'^'' The overriding principle is cHent loyalty. *^^ The Comment narrows the potential for a conflict to those situations where the clients' interests are directly affected.*^ Consequently, no conflict requiring disclosure would necessarily arise when a lawyer un- dertakes representation of two clients with competing pecuniary interests when the representation does not involve related matters."^ The Code contained similar provisions in Disciplinary Rule 5- 101 (A) and Discipli- nary Rule 5-105(A). The former prohibited representation of a client absent full disclosure if the lawyer's interest could conflict with those of the cHent. The latter required rejection of employment if the proposed employment could interfere with the lawyer's professional independent judgment on behalf of another client.'** The Comment to Rule 1.7 stresses the potential for conflict when multiple representation of criminal defendants is undertaken. Because criminal defendants often have competing interests, normally such rep- resentation should be avoided. "^ However, in either civil or criminal cases a lawyer may represent multiple clients if their interests are com- parable and the potential for negative consequences is minimal.**^ The Comment refers to Rule 2.2, which allows an attorney to act as an intermediary between clients in establishing or adjusting an entrepreneurial relationship. **"* As in any other joint representation, the lawyer must '°^RuLES, supra note 11, Rule 1.7. '^Id. '""Id. '"^Id. '"'-'Id. '°^Id. '"'Rules, supra note 11, Rule 1.7 comment. "°/c?. Interestingly, the Comment suggests that a conflict may arise when an attorney asserts opposing positions on the same legal issue in different matters pending in a trial court. Yet, the Comment condemns as improper the assertion of differing positions in independent matters pending before an appellate court. Id. '"Code, supra note 20, DR 5-101(A), 105(A). "^RuLES, supra note 11, Rule 1.7 comment. '''Id. ""Rules, supra note 11, Rule 2.2. 1988] RULES OF PROFESSIONAL CONDUCT 319 assess the possibility that a client's interests will be damaged and must reasonably conclude that the matter will be resolved in each client's best interest. ^'^ Moreover, if a mutually acceptable resolution is not forth- coming, the attorney must withdraw from the representation and dis- continue representation of any of the clients regarding the subject matter. ^^^ The Comment to Rule 2.2 is somewhat contradictory in that it states that multiple representation situations should not diminish the rights of each cUent in the lawyer-client relationship. ''^ Yet, the Comment rec- ognizes that usually the attorney-client privilege does not exist between commonly represented clients. ^'^ Accordingly, the Comment opines that in the eventuality of litigation between clients, the privilege will not protect the communications, and clients should be so advised. ^^^ Joint representation of clients and especially the situation where the lawyer acts as an intermediary requires great sensitivity by the lawyer to all clients' needs and to the potential for deterioration of the representa- tion, ^^o With regard to multiple cHents, DiscipUnary Rule 5-105'^^ in the Code allowed such representation when each client consented after being informed of possible consequences. ^^^ If the lawyer's independent pro- fessional judgment could be negatively affected, requiring withdrawal or refusal of employment, the lawyer's partners, associates and firm were also disquaHfied.^2^ Also included in the Comment to Rule 1.7 is a concern raised in DiscipUnary Rule 5- 107(B) of the Code.^^"* When a person or organization other than the cHent is responsible for the lawyer's fee, the lawyer must ensure proper representation without interference from the outside source. '^^ The Comment requires disclosure to and the consent of the client prior to representation, whereas the Disciplinary Rule did not.^^^ Rule 1.8(0 expresses the same consideration in the form of a Rule. ^27 Rule 1.8 outlines specific transactions that would constitute a conflict of interest. '2* The version of Rule 1.8 adopted in the Model Rules '''Id. ''^Id. "^RuLES, supra note 11, Rule 2.2 comment. 121 '"^Id. Code, supra note 20, DR 5-105(B), (C), (D). Id. '"Rules, supra note 11, Rule 1.7 comment. '^CoDE, supra note 20, DR 5- 107(B). '^^RuLES, supra note 11, Rule 1.7 comment. '^^Id. '2'RuLES, supra note 11, Rule 1.8(0. '^RuLES, supra note 11, Rule 1.8. 320 INDIANA LAW REVIEW [Vol. 21:307 contained ten parts. ^^^ On September 4, 1987, the Indiana Supreme Court added an eleventh section, Rule 1.8(k),'^'^ defining and limiting the type of civil practice proper for part-time prosecutors.'^^ Rule 1.8(a) forbids business transactions with clients or business interests adverse to a client unless three conditions are met.'^^ The lawyer must acquire only a fair and reasonable interest which is disclosed to the cHent in writing; the client must be given an opportunity to consult with other counsel; and the client must consent in writing.'" Similar concerns were expressed in DiscipHnary Rule 5-104(A)'^'^ along with Ethical Consideration 5-3.'^^ Rule 1.8(b) is unambiguous and has a direct counterpart in the Code. The new Rule prohibits the use of information gained from representation of a client to the client's disadvantage unless the client consents. '^^ Disciplinary Rule 4-101 (B) provided that an attorney could neither use confidences of the client to the cUent's disadvantage nor use confidences for the advantage of another without the client's consent.'^'' Rule 1.8(c) precludes the preparation of an instrument for a client wherein the lawyer or a relative of the lawyer receives a substantial gift * 'including a testamentary gift, except where the cHent is related to the donee. "'^^ No complementary discipHnary rule appeared in the Code, although Ethical Consideration 5-5 expressed similar prohibitions. "Prior to the conclusion of representation of a client," a lawyer must not *'make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account" relating to the subject of the representation is the teaching of Rule 1.8(d).'39 The Comment excludes from the Rule a fee comprised of a share in literary property if the fee comports with Rule 1.5.''*^ The Code contained Disciplinary Rule 5- 104(B) which effected the same goal.'''' '^'MoDEL Rules, supra note 4, Rule 1.8. '3°RuLES, supra note 11, Rule 1.8(k). -20. '^'RuLES, supra note 11, Rule 1.8(k). See also Code, supra note 20, EC 5-14 to '"^ULES, supra note 11, Rule 1.8(a). '"Id. •^"CoDE, supra note 20, DR 5-104(A). '"Code, supra note 20, EC 5-3. '^*RuLES, supra note 11, Rule 1.8(b). It is difficult to perceive how an attorney can competently represent a client while determining whether the client will allow the attorney to reveal confidences to the client's disadvantage. "^CoDE, supra note 20, DR 4-101(B)(2)(3). '^*RuLES, supra note 11, Rule 1.8(c). '''Rules, supra note 11, Rule 1.8(d). "*°RuLES, supra note 11, Rule 1.8(d) comment. ""Code, supra note 20, DR 5-104(B). 1988] RULES OF PROFESSIONAL CONDUCT 321 The Rules relax the Code's mandate that a lawyer not advance any costs or expenses of litigation for which the client was not ultimately responsible. *^2 According to Rule 1.8(c) a lawyer still cannot render financial assistance to a client, yet the lawyer may advance costs and expenses of litigation with repayment contingent upon a recovery. '^^ Also, the Rule allows an attorney to pay litigation expenses without the expectation of repayment if the cHent is indigent.*^ The new Rule recognizes, to some extent, the relative financial disparity between many plaintiffs and defendants. The Rule stops short of allowing attorneys to provide subsistence funds to cHents who have been injured or disabled and who are faced with a lengthy litigation process. ^"^^ Agreements to limit lawyers' liability for malpractice are prohibited in Rule 1.8(h), except when in compliance with appHcable laws and when the client has obtained independent counsel. ^"^^ Further, a lawyer cannot settle a malpractice action without advising the client or former client in writing that the chent should consult another lawyer regarding the claim. ^"^^ The Code provision most closely aligned with Rule 1.8(h) is Disciplinary Rule 6-102(A).»48 Rule 1.8(i) disqualifies related attorneys from representing different clients on opposing sides of a controversy, unless the clients consent. ^"^^ The Comment notes that the disquahfication attaches to the related lawyers rather than members of their law firms. ^^° A similar rule appeared in the Code.^^i Rule 1.8(j) prohibiting a lawyer from obtaining an interest in the subject matter of a cUent's representation should be read in conjunction with Rule 1.5 and its Comments. Rule 1.8(j) specifically excludes lawyers liens for fees and contingent fee matters as noted in the Comment to Rule 1.5. The addition of Rule 1.8(k) to Indiana's Rules of Professional Conduct represents a departure from the Model Rules. The Rule states: (k) A part-time prosecutor or deputy prosecutor authorized by statute to otherwise engage in the practice of law shall refrain '*^See Code, supra note 20, DR 5-103(B). '"'Rules, supra note 11, Rule 1.8(e). '"^This measure was debated in the House of Delegates. "**RuLES, supra note 11, Rule 1.8(h). '^"See Code, supra note 20, DR 6- 102(A). "•'Rules, supra note 11, Rule 1.8(i). •'"Rules, supra note 11, Rule 1.8(i) comment. The Rule presupposes that the lawyers are associated with different firms. Id. •''Code, supra note 20, DR 5-101 (A). 322 INDIANA LAW REVIEW [Vol. 21:307 from representing a private client in any matter wherein exists an issue upon which said prosecutor has statutory prosecutorial authority or responsibilities. This restriction is not intended to prohibit representation in tort cases in which investigation and any prosecution of infractions has terminated, nor to prohibit representation in family law matters involving no issue subject to prosecutorial authority or responsibilities. Upon a prior, ex- press written limitation of responsibility to exclude prosecutorial authority in matters related to family law, a part-time deputy prosecutor may fully represent private cUents in cases involving family law.'^^ The various sections of Rule 1.8 are largely as applicable to ongoing representation of a client as they are to employment by a new client. Indiana's Rule 1.8(k) clarifies the type of private practice available to part-time or deputy prosecutors. After a lawyer has represented a client in a legal matter, Rule 1.9(a) mandates the refusal of employment in a related matter if a new client's interests are opposed to those of the former chent, unless the lawyer obtains the permission of the former client.^" The Rule is not intended to deter representation of a new client in a position adverse to that taken for a former client on a matter not related to the former client's representation. '^"^ As in many situations arising from the rules, an attorney may be able to extricate himself/herself from potential problems by disclosing the circumstances to the client and obtaining the client's permission to proceed. Rule 1.9(b) prohibits the *'use of information relating to the rep- resentation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when information has become generally known."'" This provision is substantially similar to Rule 1.8(b). Rule 1.8(b) refers to information of a current client*^^ while Rule 1.9(b) refers to a former client. '^^ Rule 1.9 has no representation in the dis- ciplinary rules of the Code. Similar concerns were addressed through Ethical Consideration 4-6 which encouraged the preservation of a former client's *' confidences and secrets."'^* Rule 1.10 logically expands the conflict of interest disqualifications for attorneys found in Rules 1.7, 1.8 and 1.9 to the attorneys in law '"Rules, supra note 11, Rule 1.8(k). '"Rules, supra note 11, Rule 1.9(a). ^^But see supra note 110 and accompanying text. '"Rules, supra note 11, Rule 1.9(b). '"Rules, supra note 11, Rule 1.8(b). '"Rules, supra note 11, Rule 1.9(b). *CoDE, supra note 20, EC 4-6. 1988] RULES OF PROFESSIONAL CONDUCT 323 firms associated with the attorneys who would be disquahfied.'^^ In the case of a lawyer extinguishing association with a firm, attorneys in the firm are not necessarily disqualified from employment by a client whose interests are adverse to those of a client represented by the formerly associated lawyer. ^^^ However, if the matter of the representation **is the same or substantially related to that in which the formerly associated lawyer represented the client; and . . . any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(b) that is material to the matter" a disquahfication may be appropriate.'^^ As often provided in the Rules, a lawyer or the firm'^^ may not be required to refuse employment if the client who would be adversely affected waives the protection. '^^ This question of disqualification was minimally addressed in Disciplinary Rule 5-1 05(D). '^ It required law firms to withdraw or refuse employment in a matter in which an attorney associated with the firm was disqualified.*^^ Aimed at curbing the exploitation of governmental or public service employment for the advantage of a private client. Rules 1.11(a) and (b) limit the participation by lawyers or their firms in matters for private clients if the lawyers personally acted in the matter while employed by a government agency.*^ The disqualification may be relaxed if the gov- ernment agency consents to the representation after disclosure. *^^ The Code counterpart to Rule 1.11(a), Disciplinary Rule 9-101(B), stated **A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a pubhc employee. *'*^^ In the cases where government employment succeeds private em- ployment or a government employee considers pursuit of private em- ployment. Rule 1.11(c) controls. '^^ Rule 1.11(c)(1) precludes participation by a public employee **in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful del- ' "Rules, supra note 11, Rule 1.10. '"As to what type of group constitutes a "firm," the Comment specifically includes private law firms, corporate counsel within the same entity and legal services organizations. Rules, supra note 11, Rule 1.10 comment. Less obvious are cases where attorneys share office space, unincorporated organizations with affiliates and some governmental units. '"Rules, supra note 11, Rule 1.10. '"Code, supra note 20, DR 5- 105(D). '"•'Id. '"Rules, supra note 11, Rule 1.11(a), (b). '""Id. '*«CoDE, supra note 20, DR 9- 101(B). '^'Rules, supra note 11, Rule 1.11(c). 324 INDIANA LAW REVIEW [Vol. 21:307 egation may be, authorized to act in the lawyer's stead in the matter. "^''^ In the second portion of the Rule, 1.11(c)(2), an attorney in public service is prohibited from negotiating private employment with an at- torney or a person involved in a matter in which the government attorney is involved. *^^ The Comment accompanying Rule 1.11(c) notes that the section is directed to the lawyer personally involved, not other lawyers in the same public or governmental agency. ^^^ The Code contained no counterpart to this Rule.^^^ Rule 1.12 corresponds to Rule 1.11(c), but substitutes a judicial officer, an arbitrator or a law clerk to a judicial officer for the lawyer employed by a governmental agency.'^'* The Comment includes within the term "adjudicative officer" judges pro tempore, referees, special masters, hearing officers, parajudicial officers, and part-time judges. ^''^ The law firm of any disqualified lawyer is also disqualified with few exceptions. ^^^ Although a judicial officer may not solicit employment with a party or lawyer in a matter in which the judge is actually participating, a law clerk may do so, after notifying the adjudicative officer by whom the law clerk is employed. '^^ Also '*an arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party. "^"^^ In the Code Disciplinary Rule 9- 101 (A) forbade representation of a client in a matter in which the lawyer served in an adjudicative capacity on the merits. '^^ Other portions of Rule 1.12 have no corresponding disciplinary rule in the Code. However, the Code of Judicial Conduct Canon 3 carries substantially similar import. ^^° The special considerations necessary when an attorney is employed by a corporate client or organization are the subject of Rule 1.13.^^^ The attorney conducts the representation through '*duly authorized con- stituents" of the organization. ^^2 ^ communication by a constituent regarding the organization is protected by Rule 1.6. As noted in the '^°RuLES, supra note 11, Rule 1.11(c)(1). '^'RuLES, supra note 11, Rule 1.11(c)(2). '^^RuLES, supra note 11, Rule 1.11 comment. "'Id. '^•RuLES, supra note 11, Rule 1.12. '^'RuLES, supra note 11, Rule 1.12 comment. '^*RuLES, supra note 11, Rule 1.12. '^^RuLES, supra note 11, Rule 1.12. '^*RuLES, supra note 11, Rule 1.12 comment. '^'CoDE, supra note 20, DR 9- 101 (A). '*°CoDE OF Judicial Conduct Canon 3(C)(l)(b)-(d). '*'RuLES, supra note 11, Rule 1.13. '*^/E, supra note 20, EC 2-29. ''''Id. '°*CoDE, supra note 20, EC 2-30. '"'Rules, supra note 11, Rule 6.3. 338 INDIANA LAW REVIEW [Vol. 21:307 personally involved in action taken by the organization which would negatively affect the lawyer's responsibilities to a private client.^^ Con- versely, the lawyer must not make a decision which would adversely affect a client of the organization in order to benefit a private client. ^^^ The Code does not contain provisions similar to Rule 6.3. Rule 6.4 provides that a lawyer may participate as a member, director or officer of an entity dedicated to reform of the law even though the reform may involve interests of a client. ^^'^ If a client's interests may be materially advanced by a decision in which the lawyer participates, the lawyer must reveal that information, but not necessarily the client's identity.^^ This Rule is an extension of Rule 6.3 and has no counterpart in the Code. Rule 7, as adopted in Indiana, is materially different than the provisions of the Model Rules. The version of Rule 7.1 as adopted in Indiana is substantially the same as DiscipHnary Rule 2-101 on publicity and advertising. ^1^ However, Disciplinary Rule 2-101 prohibited a public communication which included a pictorial depiction of a person who was not a lawyer in the firm unless a specific disclaimer appeared on the communication. That prohibition was removed from Rule 7.1.^** Rule 7.1 in the Model Rules treated the subject of false or misleading statements or communications, or implications that certain results may be obtained by the lawyer.^^^ Rule 7.2 regarding professional notices, letterhead, office names and law lists is identical to Disciplinary Rule 2-102 in the Code.^^^ Model Rule 7.2 involves advertising and communication aimed at obtaining chents.^^"^ The Comment suggests that Rule 7.2 dispels the traditionally held view that lawyer advertisements should not be for the purpose of seeking clients.^ '^ The version of Rule 7.3 adopted in Indiana is the same as Disciplinary Rule 2-103 on recommending or soliciting professional employment.^'^ Rule 7.3 specifically does not allow many types of written communication with prospective clients, and specifically prohibits any '*in-person con- tact" soliciting employment when the potential client has not sought the ^^Id. See also Rules, supra note 11, Rule 1.7. ^°''RuLES, supra note 11, Rule 6.3. '°*RuLES, supra note 11, Rule 6.4. '°^Id. ^^°Compare Rules, supra note 11, Rule 7.1 with Code, supra note 20, DR 2-101. '"Id. ^'^MoDEL Rules, 'supra note 4, Rule 7.1. ^'^RuLES, supra note 11, Rule 7.2; Code, supra note 20, DR 2-102. ^''Model Rltles, supra note 4, Rule 7.2. '''Id. ''^Compare Rules, supra note 11, Rule 7.1 with Code, supra note 20, DR 2-101. 1988] RULES OF PROFESSIONAL CONDUCT 339 lawyer's services. ^'"^ The Model Rule 7.3 addresses the subject of contact with potential clients but generally distinguishes between communication to solicit employment which targets a recipient and those solicitations in the form of a letter or advertising circular delivered to persons whose needs for legal services are unknown. ^'^ Rule 7.4, the last section within Rule 7, is worded identically to DiscipHnary Rule 2-104, except references to Code sections are altered.^ '^ Rule 7.4 discusses the limitation of a lawyer's practice to certain areas of law. In general, direct or indirect statements that a lawyer is a specialist in a certain area of law are prohibited except by lawyers who engage in patent, trademark or admiralty law.^^o The Rule does not, however, preclude statements that a lawyer's practice is limited to a particular area of law.^^^ Although Model Rule 7.4 is similar to Indiana's version of Rule 7.4, the Comment to the Model Rule recommends against a statement that the lawyer's practice **is limited to" or "concentrated in" a certain area because those phrases generally connote specialization in the fields. ^^2 H. Professional Integrity Rule 8 comes under the heading ** Maintaining the Integrity of the Profession" and its five sections cover '*Bar Admission and DiscipHnary Matters," ''Judicial and Legal Officials," "Reporting Professional Mis- conduct," "Misconduct" and "Jurisdiction. "^^s ^^jg § j prohibits either an applicant for admission to the bar or a lawyer connected with such an application or a disciplinary matter from making false statements of fact, or failing to disclose necessary facts in connection with those proceedings.^^ Although Rule 8.1 covers familiar ground in its prohi- bitions of certain actions by lawyers, this Rule is unique in that it extends to persons who have not yet been admitted to the Bar and subjects those persons to disciplinary action after admission. ^^^ Rule 8.1 is parallel to Disciplinary Rule 1-101 (A) with respect to an application for admission to the Bar.326 "^RuLES, supra note 11, Rule 7.3. '"Model Rules, supra note 11, Rule 7.3. ^^^Compare Rules, supra note 11, Rule 7,4 with Code, supra note 20, DR 2-104. '^RuLES, supra note 11, Rule 7.4. '^^MoDEL Rules, supra note 4, Rule 7.4 comment. '"Rules, supra note 11, Rule 8. '^RuLES, supra note 11, Rule 8.1. A disclaimer at the end of Rule 8.1 states that "this rule does not require disclosure of information otherwise protected by Rule 1.6." Id. '^'Id. '^CoDE, supra note 20, DR 1-101 (A). 340 INDIANA LAW REVIEW [Vol. 21:307 Rule 8.2 prohibits a lawyer from making a statement about a judge, legal official or a candidate for those offices that is either false or made "with reckless disregard as to its truth or falsity. "^^^ Further, a lawyer who is a candidate for judicial office must comply with appHcable provisions of the Code of Judicial Conduct. ^^^ Portions of Rule 8.2 are identical in effect to the provisions of DiscipHnary Rule 8-102;^^^ but with respect to lawyers who are candidates for judicial office there exists no counterpart in the Code. Rule 8.3 requires a lawyer to inform the proper authorities of professional misconduct of either another lawyer or a judge that "raises a substantial question" as to the fitness of the lawyer or judge."^ Rule 8.3 is parallel to Disciplinary Rule 1-103 except that the Rule gives the lawyer with knowledge of a violation some flexibility in deciding whether to report an incident of professional misconduct. The Comments explain that rules requiring the reporting of every offense were "unenforceable" and, therefore, only offenses which "a self-regulating profession must vigorously endeavor to prevent" should be reported."' Rule 8.4 defines professional misconduct for a lawyer as any act in violation of the Rules, certain criminal acts, fraudulent or dishonest acts and interference with the administration of justice."^ The Comments accompanying Rule 8.4 explain that not all criminal acts are included in the purview of "professional misconduct" because a lawyer should be professionally, as opposed to criminally, answerable only for "offenses that indicate lack of those characteristics relevant to law practice. ""^ Those offenses include crimes involving violence, dishonesty and breach of trust.""* The sections of Rule 8.4 do not deviate significantly from the provisions of DiscipHnary Rule 1-102(A)"^ and Rule 8.4's proscription of implying an ability to influence a government agency or official is identical to Disciplinary Rule 9-101(c)."^ Rule 8.5 closes the Rules of Professional Conduct by asserting disciplinary jurisdiction over any lawyer admitted to practice in this jurisdiction, regardless of whether the lawyer is also engaged in practice elsewhere."^ "'Rules, supra note 11, Rule 8.2. "»/cf. "'Code, supra note 20, DR 8-102. "°RuLES, supra note 11, Rule 8.3. "'Code, supra note 20, DR 1-103. "^RuLES, supra note 11, Rule 8.4. "'Rules, supra note 11, Rule 8.4 comment. "*/g?. "^CoDE, supra note 20, DR 1- 102(a). "*CoDE, supra note 20, DR 9- 101(c). "'Rules, supra note 11, Rule 8.5. 1988] RULES OF PROFESSIONAL CONDUCT 341 III. Conclusion Generally, the new Rules require full disclosure to a client of matters relevant to the representation. When a potential conflict of interest can be foreseen by the attorney, rejection of employment or withdrawal from representation may be appropriate. If the potential for conflict is minimal, disclosure and/or the client's consent to the representation may be required. If the new Rules were reduced to two watch words, these words would be **disclosure" and * 'consent." While the new Rules form a solid framework for attorney-client relationships and attorney ethical considerations, common sense must prevail. An elevated standard of care may be required given certain circumstances or contingencies, not all of which can be addressed within the Rules.