Differences from ABA Model Rules
| Rule 1.2(c) Limited Scope | Significant Changes |
| Rule 5.4(a) Fee-Sharing | Significant Changes |
| Rules 5.4(b)-(d) Non-Lawyer Ownership | Significant Changes |
| Rule 5.5. Unauthorized Practice of Law | Significant Changes |
| Rule 5.7 Law Related Services | Does Not Have |
| Rule 6.5 Limited Scope | Same as Model Rule |
| Rule 7.2(b) Lawyer Referral | Significant Changes |
| Cloud Computing Advisory | Yes |
| Technology Competency Rules | No |
ABA Rule 1.2(c) (Limited Scope)
Alabama Rules of Professional Conduct
Client-Lawyer Relationship
Rule 1.2.
Scope of Representation.
…
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
(1) The client’s informed consent must be confirmed in writing unless:
(i) the representation of the client consists solely of telephone consultation;
(ii) the representation is provided by a lawyer employed by a nonprofit legal-services program or participating in a pro bono program approved by the Alabama State Bar pursuant to Rule 6.6 and the lawyer’s representation consists solely of providing information and advice or the preparation of legal documents; or
(iii) the court appoints the attorney for a limited purpose that is set forth in the appointment order.
(2) If the client gives informed consent in writing signed by the client, there shall be a presumption that:
(i) the representation is limited to the attorney and the services described in the writing; and
(ii) the attorney does not represent the client generally or in matters other than those identified in the writing.
Relevant Comments:
Services Limited in Objectives or Means
The objectives or scope of services 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. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. The terms upon which representation is undertaken may exclude specific objectives or means. Such limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent.
Modified By:
Alabama State Bar Ass’n Ethics Op. 2010-01
The Alabama Rules of Professional Conduct allow a lawyer to limit the scope of the representation. Ordinarily, a lawyer is not required to disclose drafting assistance to the court.
ABA Rule 5.4(a) (Fee-sharing)
Alabama Rules of Professional Conduct
Law Firms and Associations
Rule 5.4.
Professional Independence of a Lawyer.
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) An agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; and
(3) A lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.
Relevant Comments:
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. A lawyer’s payment or absorption of discount charges on fees paid by credit or under a prepaid legal services plan does not interfere with the lawyer’s professional judgment or independence and is permitted.
Modified by:
Ala. Ethics Op. 2007-03 (2007) (law firm hiring temporary lawyer should pay him directly and pay separate placement fee to staffing agency to avoid impermissible fee-division)
ABA Rule 5.4(b – d) Non-lawyer ownership
Alabama Rules of Professional Conduct
Law Firms and Associations
Rule 5.4.
Professional Independence of a Lawyer
…
(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) A nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) A nonlawyer is a corporate director or officer thereof; or
(3) A nonlawyer has the right to direct or control the professional judgment of a lawyer.
Relevant Comments:
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. A lawyer’s payment or absorption of discount charges on fees paid by credit or under a prepaid legal services plan does not interfere with the lawyer’s professional judgment or independence and is permitted.
ABA Rule 5.5 (UPL)
Alabama Rules of Professional Conduct
Law Firms and Associations
Rule 5.5.
Unauthorized Practice of Law.
a) A lawyer shall not:
(1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or
(2) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.
(b) Subject to the requirements of Rule VII, Rules Governing Admission to the Alabama State Bar (Admission of Foreign Attorneys Pro Hac Vice), a lawyer admitted in another United States jurisdiction but not in the State of Alabama (and not disbarred or suspended from practice in that or any jurisdiction) does not engage in the unauthorized practice of law when the lawyer represents a client on a temporary or incidental basis (as defined below) in the State of Alabama. Services for a client are within the provisions of this subsection if the services:
(1) are performed on a temporary basis by a lawyer admitted and in good standing in another United States jurisdiction, including transactional, counseling, or other nonlitigation services that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice;
(2) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding held or to be held in this or in another jurisdiction; or
(3) are performed by an attorney admitted as an authorized house counsel under Rule IX of the Rules Governing Admission to the Alabama State Bar and who is performing only those services defined in that rule.
(c) A lawyer admitted to practice in another jurisdiction but not in the State of Alabama does not engage in the unauthorized practice of law in the State of Alabama when the lawyer renders services in the State of Alabama pursuant to other authority granted by federal law or under the law or a court rule of the State of Alabama.
(d) Except as authorized by these Rules or other law, a lawyer who is not admitted to practice in the State of Alabama shall not
(1) establish an office or other permanent presence in this jurisdiction for the practice of law, or
(2) represent or hold out to the public that the lawyer is admitted to practice law in Alabama.
(e) Practicing law other than in compliance with this rule or Rule VII or Rule VIII of the Rules Governing Admission to the Alabama State Bar, or other rule expressly permitting the practice of law, such as the Rule Governing Legal Internship by Law Students, shall constitute the unauthorized practice of law and shall subject the lawyer to all of the penalties, both civil and criminal, as provided by law.
Relevant Comments:
The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3. Likewise, it does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law, for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
Modified by:
Bd. of Comm’rs of Ala. State Bar v. State ex rel. Baxley, 324 So.2d 256 (Ala. 1975);
State ex rel. Porter v. Alabama Ass’n of Credit Executives, 338 So.2d 812 (Ala. 1976);
Statutory Definition:
CODE OF ALABAMA
TITLE 34.
PROFESSIONS AND BUSINESSES.
§34-3-6. Who may practice as attorneys.
CHAPTER 3. ATTORNEY-AT-LAW.
(b) For the purposes of this chapter, the practice of law is defined as follows:
Whoever,
(1) In a representative capacity appears as an advocate or draws papers, pleadings or documents, or performs any act in connection with proceedings pending or prospective before a court or a body, board, committee, commission or officer constituted by law or having authority to take evidence in or settle or determine controversies in the exercise of the judicial power of the state or any subdivision thereof; or
(2) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, advises or counsels another as to secular law, or draws or procures or assists in the drawing of a paper, document or instrument affecting or relating to secular rights; or
(3) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, does any act in a representative capacity in behalf of another tending to obtain or secure for such other the prevention or the redress of a wrong or the enforcement or establishment of a right; or
(4) As a vocation, enforces, secures, settles, adjusts or compromises defaulted, controverted or disputed accounts, claims or demands between persons with neither of whom he is in privity or in the relation of employer and employee in the ordinary sense;
is practicing law.
(c) Nothing in this section shall be construed to prohibit any person, firm or corporation from attending to and caring for his or its own business, claims or demands, nor from preparing abstracts of title, certifying, guaranteeing or insuring titles to property, real or personal, or an interest therein, or a lien or encumbrance thereon, but any such person, firm or corporation engaged in preparing abstracts of title, certifying, guaranteeing or insuring titles to real or personal property are prohibited from preparing or drawing or procuring or assisting in the drawing or preparation of deeds, conveyances, mortgages and any paper, document or instrument affecting or relating to secular rights, which acts are hereby defined to be an act of practicing law, unless such person, firm or corporation shall have a proprietary interest in such property; however, any such person, firm or corporation so engaged in preparing abstracts of title, certifying, guaranteeing or insuring titles shall be permitted to prepare or draw or procure or assist in the drawing or preparation of simple affidavits or statements of fact to be used by such person, firm or corporation in support of its title policies, to be retained in its files and not to be recorded.
ABA Rule 5.7 (Law Related Services)
Does not adopt
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
Same as Model Rule.
ABA Rule 7.2(b) (Lawyer referral)
Alabama Rules of Professional Conduct
Information About Legal Services
Rule 7.2.
Advertising.
…
(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of any advertisement or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service.
Relevant Comment:
Paying Others to Recommend a Lawyer
A lawyer is allowed to pay for advertising permitted by this Rule, 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 or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in not-for-profit lawyer referral programs and pay the usual fees charged by such programs. Paragraph (c) does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule.
Modified by:
Ala. State Bar Ass’n v. R.W. Lynch Co., 655 So. 2d 982 (Ala. 1995) (Individual lawyers and firms paid for a television commercial that included a notice that the advertisement was paid for by the sponsoring lawyers and was not a lawyer referral service; viewers who responded gave their names and numbers to a receptionist who forwarded the information to the lawyers according to their geographical areas. The lawyers then responded by calling the viewers to discuss the need for legal services. This plan was held to be a permissible form of group advertising and not a referral service.)
Ala. Ethics Op. 2012-01 (2012) (Percentage of lawyer’s fee retained by “daily deal” website company not reasonable cost of advertising.)
Cloud Computing
Opinion 2010-02 https://www.alabar.org/resources/office-of-general-counsel/formal-opinions/2010-02/
Reasonable Care standard.
Specific Recommendations
- Know how provider handles storage/security of data.
- Reasonably ensure confidentiality agreement is followed.
- Stay abreast of best practices regarding data safeguards.
Technology Competency
Does not require.