Innovation of Note
The Connecticut Bar Association has convened a State of the Legal Profession Task Force to begin a dialogue with the Connecticut legal community and make recommendations for how we can reduce legal costs, improve legal efficiency, and better manage legal dockets.
Change Log Entries
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||Same as Model Rule|
|Rule 5.5. Unauthorized Practice of Law||Significant Changes|
|Rule 5.7 Law Related Services||Does Not Have|
|Rule 6.5 Limited Scope||Significant Changes|
|Rule 7.2(b) Lawyer Referral||Significant Changes|
|Cloud Computing Advisory||Yes|
|Technology Competency Rules||Yes|
ABA Rule 1.2(c) (Limited Scope)
Rule 1.2. Scope of Representation and Allocation of Authority between Client and Lawyer
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. Such informed consent shall not be required when a client cannot be located despite reasonable efforts where the lawyer is retained to represent a client by a third party that is obligated by contract to provide the client with a defense.
Agreements Limiting Scope of Representation. 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. For example, when a lawyer has been retained by an insurer to representan insured, 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.Nothing in Rule 1.2 shall be construed to authorize limited appearances before any tribunal unless otherwise authorized by law or rule.
Although this Rule affords the lawyer and client substantial latitude to limit the scope of 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.
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.
Connecticut Informal Op. 90-18 (1990) (Legal aid agencies, in lieu of representation, may offer a class on pro se divorce to individuals seeking simple uncontested divorce and, for more complicated matters, provided clients are fully advised of the risks of proceeding pro se.)
Conn. Informal Ethics Op. 98-5 (1998) (lawyer who prepares document for purportedly pro se litigant to file with court must so inform court)
Conn. Informal Ethics Op. 09-01 (2009)
ABA Rule 5.4(a) (Fee-sharing)
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 estateor to one or more specified persons;
(2) A lawyer who purchases the practice of a deceased, disabled or disappeared lawyer may,pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed upon purchase price; 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.
COMMENTARY: 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 subsection (c), such arrangements should not interfere with the lawyer’s professional judgment.
ABA Rule 5.4(b – d) Non-lawyer ownership
Rule 5.4. Professional Independence of a Lawyer
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional corporation or 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 occupies the position of similar responsibility in any form of association other than a corporation; or
(3) A nonlawyer has the right to direct or control the professional judgment of a lawyer.
This Rule also expresses traditional limitations on permit-ting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another. See also Rule1.8 (f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent).
ABA Rule 5.5 (UPL)
Rule 5.5. Unauthorized Practice of Law
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. The practice of law in this jurisdiction isdefined in Practice Book Section 2-44A. Conduct described in subsections (c) and (d) in another jurisdiction shall not be deemed the unauthorized practice of law for purposes of this subsection (a).
(b) A lawyer who is not admitted to practice in this jurisdiction, shall not:
(1) except as authorized by law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction which accords similar privileges to Connecticut lawyers in its jurisdiction, and provided that the lawyer is not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction, that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential mediation or other alternative dispute resolution proceeding in this or another jurisdiction, with respect to a matter that is substantially related to, or arises in, a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within subdivisions (c) (2) or (c) (3)and arise out of or are substantially related to the legal services provided to an existing client of the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted to practice in another jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:
(1) the lawyer is authorized to provide pursuant to Practice Book Section 2-15A and the lawyer is an authorized house counsel as provided in that section; or
(2) the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.
(e) A lawyer not admitted to practice in this jurisdiction and authorized by the provisions of this Rule to engage in providing legal services on a temporary basis in this jurisdiction is thereby subject to the disciplinary rules of this jurisdiction with respect to the activities in this jurisdiction.
(f) A lawyer desirous of obtaining the privileges set forth in subsections (c) (3) or (4):
(1) shall notify the statewide bar counsel as to each sepa-rate matter prior to any such representation in Connecticut,
(2) shall notify the statewide bar counsel upon termination of each such representation in Connecticut, and
(3) shall pay such fees as may be prescribed by the Judicial Branch.
COMMENTARY: A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Sub-section (a) applies to unauthorized practice of law by a lawyer,whether through the lawyer’s direct action or by the lawyer’s assisting another person. For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person’s jurisdiction.
A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. Lawyers also mayassist independent nonlawyers, such as paraprofessionals,who are authorized by the law of a jurisdiction to provide particular law-related services. In addition, a lawyer may counsel nonlawyers who wish to proceed as self-represented parties.
Other than as authorized by law or this Rule, a lawyer whois not admitted to practice generally in this jurisdiction violates subsection (b) (1) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1 (a) and 7.5 (b). A lawyer not admitted to practice in this jurisdiction who engages in repeated and frequent activities of a similar nature in this jurisdiction such as the preparation and/or recording of legal documents (loans and mortgages) involving residents or property in this state may be considered to have a systematic and continuous presence in this jurisdiction that would not be authorized by this Rule and could, thereby, be considered to constitute unauthorized practice of law.
There are occasions in which a lawyer admitted to practice in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts. Subsection (c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized.With the exception of subdivisions (d) (1) and (d) (2), this Rule does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice generally here. There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction and may, therefore, be permissible under subsection (c). Services may be “temporary” even though the lawyer provides services in this jurisdiction for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.
Subsection (c) applies to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The word “admitted” in subsection (c)contemplates that the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who, while technically admitted, is not authorized to practice, because, for example, the lawyer is in an inactive status.
Subdivision (c) (1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction. For this subdivision to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client.
Lawyers not admitted to practice generally in a jurisdiction may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency. This authority may be granted pursuant to formal rules governing admission pro hac vice or pursuant to informal practice of the tribunal or agency. Under subdivision (c) (2), a lawyer does not violate this Rule when the lawyer appears before a tribunal or agency pursuant to such authority. To the extent that a court rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing before a tribunal or administrative agency, this Rule requires the lawyer to obtain that authority.
Subdivision (c) (2) also provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this Rule when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly,a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer isor reasonably expects to be authorized to appear, including taking depositions in this jurisdiction.
When a lawyer has been or reasonably expects to be admitted to appear before a court or administrative agency, subdivision (c) (2) also permits conduct by lawyers who are associated with that lawyer in the matter, but who do not expect to appear before the court or administrative agency. For example, subordinate lawyers may conduct research, review documents, and attend meetings with witnesses in support of the lawyer responsible for the litigation.
Subdivision (c) (3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential mediation or other alternative dispute resolution proceeding in this or another jurisdiction, if the services are with respect to a matter that is substantially related to, or arises out of, a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require.
Subdivision (c) (4) permits a lawyer admitted in another jurisdiction to provide certain legal services on a temporary basis in this jurisdiction if they arise out of or are substantially related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted but are not within subdivisions (c) (2) or(c) (3). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.
Subdivision (c) (3) requires that the services be with respect to a matter that is substantially related to, or arises out of, a jurisdiction in which the lawyer is admitted. A variety of factors may evidence such a relationship. However, the matter,although involving other jurisdictions, must have a significant connection with the jurisdiction in which the lawyer is admitted to practice. A significant aspect of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client’s activities and theresulting legal issues involve multiple jurisdictions. Subdivision(c) (4) requires that the services provided in this jurisdiction in which the lawyer is not admitted to practice be for (1) an existing client, i.e., one with whom the lawyer has a previous relationship and not arising solely out of a Connecticut based matter and (2) arise out of or be substantially related to the legal services provided to that client in a jurisdiction in which the lawyer is admitted to practice. Without both, the lawyer is prohibited from practicing law in the jurisdiction in which the lawyer is not admitted to practice.
Subdivision (d) (2) recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or other law,which includes statute, court rule, executive regulation or judicial precedent.
A lawyer who practices law in this jurisdiction pursuant to subsections (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5 (a).
In some circumstances, a lawyer who practices law in this jurisdiction pursuant to subsections (c) or (d) may have to inform the client that the lawyer is not licensed to practice law in this jurisdiction.
Subsections (c) and (d) do not authorize communications advertising legal services in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services in this jurisdiction is governed by Rules 7.1 to 7.5
Grievance Comm. v. Dacey, 222 A.2d 339 (Conn. 1966) (nonlawyer engaged in practice of law by preparing wills and trusts for members of public and advising them about desirability of specific documents)
Monroe v. Horwitch, 820 F. Supp. 682 (D. Conn. 1993) (statute prohibiting unauthorized practice of law did not violate paralegal’s First or Fourteenth Amendment rights)
State v. Hammer, 14 A.3d 425 (Conn. App. Ct. 2011) (Representing another in court is practice of law )
Statewide Grievance Comm. v. Harris, 683 A.2d 1362 (Conn. 1996) (advertising nonlawyer preparation of legal documents in divorce cases)
Statewide Grievance Comm. v. Zadora, 772 A.2d 681 (Conn. App. Ct. 2001) (advertising alone can constitute unauthorized practice if advertisement for activity that amounts to legal services, even though advertising includes disclaimers); aba
The practice of law consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. It embraces the giving of legal advice on a large variety of subjects and the preparation of legal instruments covering an extensive field.
ABA Rule 5.7 (Law Related Services)
Does not adopt Model Rule.
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
Rule 6.5. Nonprofit and Court-Annexed Limited Legal Services Programs
(b) A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client’s informed consent to the limited scope of the representation. See Rule 1.2 (c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel.Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation
ABA Rule 7.2(b) (Lawyer referral)
Rule 7.2. Advertising
(c) A lawyer shall not give anything of value toa person for recommending the lawyer’s services,except that a lawyer may:
(1) pay the reasonable cost of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;
(3) pay for a law practice in accordance with Rule 1.17.
Paying Others To Recommend a Lawyer. Except as permitted under subsection (c) (1) through (c) (3), lawyers are not permitted to pay others for recommending the lawyer’s services or for channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abili-ties, competence, character, or other professional qualities.Subsection (c) (1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, online directory listings, news-paper advertisements, television and radio airtime, domain name registrations, sponsorship fees, advertisements,Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client development services,such as publicists, public relations personnel, business development staff and website designers. See also Rule 5.3 (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.4 (a) (duty to avoid violating the Rules through the acts of another).
A lawyer may pay the usual charges of a legal service planor a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation. A lawyer referral service, on the other hand,is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by the public to be consumer oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority as affording adequate protections for the public. See, e.g.,the American Bar Association’s Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer Referral and Information Service Quality Assurance Act (requiring hat organizations that are identified as lawyer referral services: [i] permit the participation of all lawyers who are licensed and eligible to practice in the jurisdiction and who meet reasonable objective eligibility requirements as may be established by the referral service for the protection of the public; [ii] require each participating lawyer to carry reasonably adequate malpractice insurance; [iii] act reasonably to assess client satisfaction and address client complaints; and [iv] do not make referrals to lawyers who own, operate or are employed by the referral service).
A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations. See Rule 5.3. Legal service plans and lawyer referral services may communicate with the public, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead the public to think that it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in person, telephonic, or real-time contacts that would violate Rule 7.3
Conn. Ethics Op. 92-24 (1992) (doing legal work for existing client on pro bono or reduced-fee basis in exchange for referral of new client constitutes giving something “of value” in violation of Rule 7.2)
Conn. Informal Ethics Op. 04-06 (2004) (lawyer who participates with nonlawyers in joint marketing efforts may contribute only lawyer’s actual share of marketing expenses)
Reasonable care standard
- Lawyers ownership and access to the data must not be hindered.
- Security policies and processes should segregate the lawyer’s data to prevent unauthorized access to the data, including by the cloud service provider.
Comment to Rule 1.1
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.