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Delaware Legal Ethics

Prepared By
Professors Louise L. Hill and Lawrence A. Hamermesh

Widener University School of Law

Wilmington, Delaware

This summary of the law of lawyering of Delaware has been prepared by Professors Louise L. Hill and Lawrence A. Hamermesh of the Widener University School of Law in Wilmington, Delaware. The summary is transmitted for informational purposes only and not for legal advice. Users should not act upon this information without seeking the professional advice of a lawyer in the applicable jurisdiction. An effort has been made to provide useful information, but the information is not necessarily complete, may be inaccurate, and may not reflect current legal developments. The provider does not warrant that the information is complete or accurate and disclaims all liability to any person for any loss caused by errors or omissions in the summary.

Suggestions for improvements or correction are welcome. Please send them to: Professor Louise L. Hill, Widener University School of Law, 4601 Concord Pike, Wilmington, Delaware 19803; email: llhill@mail.widener.edu

Copyright in this narrative is held by Louise L. Hill and Lawrence A. Hamermesh. Copyright in the full American Legal Ethics Library is held by Cornell University. Questions about redistribution of the library should be directed to: Legal Information Institute, Cornell Law School, Myron Taylor Hall, Ithaca, NY 14853, E-mail: lii@lii.law.cornell.edu

The following recent graduates of Widener Law School are primarily responsible for research and drafting of this narrative: Corinne Foley; Jason Marmon; and Suzanne Montgomery. Additional assistance was provided by the staff of the Delaware Office of Disciplinary Counsel, Andrea Rocanelli, Esquire.

The cutoff date for this edition is January 1, 2006. Consequently, the narrative may not reflect decisions, amendments or other legal developments after that date.

INTRODUCTION

  • 0.1:100 Sources of Law and Guidance
  • 0.2:200 Forms of Lawyer Regulation in Delaware
  • 0.3:300 Organization of This Library and the Model Rules
  • 0.4:400 Abbreviations, References and Terminology
  • 0.4:500 Additional Definitions in Delaware

I. Client-lawyer relationship

  • 1.1 Rule 1.1 Competence
    • 1.1:100 Comparative Analysis of Delaware Rule
    • 1.1:200 Disciplinary Standard of Competence
    • 1.1:300 Malpractice Liability
    • 1.1:400 Liability to Certain Non-Clients
    • 1.1:500 Defenses and Exceptions to Liability
    • 1.1:600 Vicarious Liability [see 5.1:500]
  • 1.2 Rule 1.2 Scope of Representation
    • 1.2:100 Comparative Analysis of Delaware Rule
    • 1.2:200 Creating the Client-Lawyer Relationship
    • 1.2:300 Authority to Make Decisions or Act for Client
    • 1.2:400 Lawyer's Moral Autonomy
    • 1.2:500 Limiting the Scope of Representation
    • 1.2:600 Prohibited Assistance
    • 1.2:700 Warning Client of Limitations on Representation
    • 1.2:800 Identifying to Whom a Lawyer Owes Duties
  • 1.3 Rule 1.3 Diligence
  • 1.4 Rule 1.4 Communication
    • 1.4:100 Comparative Analysis of Delaware Rule
    • 1.4:200 Duty to Communicate with Client
    • 1.4:300 Duty to Consult with Client
    • 1.4:400 Duty to Inform the Client of Settlement Offers
  • 1.5 Rule 1.5 Fees
    • 1.5:100 Comparative Analysis of Delaware Rule
    • 1.5:200 A Lawyer's Claim to Compensation
    • 1.5:300 Attorney-Fee Awards (Fee Shifting)
    • 1.5:400 Reasonableness of a Fee Agreement
    • 1.5:500 Communication Regarding Fees
    • 1.5:600 Contingent Fees
    • 1.5:700 Unlawful Fees
    • 1.5:800 Fee Splitting (Referral Fees)
  • 1.6 Rule 1.6 Confidentiality of Information
    • 1.6:100 Comparative Analysis of Delaware Rule
    • 1.6:200 Professional Duty of Confidentiality
    • 1.6:300 Exceptions to Duty of Confidentiality--In General
    • 1.6:400 Attorney-Client Privilege
    • 1.6:500 Waiver of Attorney-Client Privilege
    • 1.6:600 Exceptions to Attorney-Client Privilege
    • 1.6:700 Lawyer Work-Product Immunity
  • 1.7 Rule 1.7 Conflict of Interest: General Rule
    • 1.7:100 Comparative Analysis of Delaware Rule
    • 1.7:200 Conflicts of Interest in General
    • 1.7:300 Conflict of Interest Among Current Clients (Concurrent Conflicts)
    • 1.7:400 Conflict of Interest Between Current Client and Third-Party Payor
    • 1.7:500 Conflict of Interest Between Current Client and Lawyer's Interest [see also 1.8:200]
  • 1.8 Rule 1.8 Conflict of Interest: Prohibited Transactions
    • 1.8:100 Comparative Analysis of Delaware Rule
    • 1.8:200 Lawyer's Personal Interest Affecting Relationship
    • 1.8:300 Lawyer's Use of Client Information
    • 1.8:400 Client Gifts to Lawyer
    • 1.8:500 Literary or Media Rights Relating to Representation
    • 1.8:600 Financing Litigation
    • 1.8:700 Payment of Lawyer's Fee by Third Person
    • 1.8:800 Aggregate Settlements
    • 1.8:900 Agreements Involving Lawyer's Malpractice Liability
    • 1.8:1000 Opposing a Lawyer Relative
    • 1.8:1100 Lawyer's Proprietary Interest in Subject Matter of Representation
  • 1.9 Rule 1.9 Conflict of Interest: Former Client
    • 1.9:100 Comparative Analysis of Delaware Rule
    • 1.9:200 Representation Adverse to Interest of Former Client--In General
    • 1.9:300 Client of Lawyer's Former Firm
    • 1.9:400 Use or Disclosure of Former Client's Confidences
  • 1.10 Rule 1.10 Imputed Disqualification: General Rule
    • 1.10:100 Comparative Analysis of Delaware Rule
    • 1.10:200 Imputed Disqualification Among Current Affiliated Lawyers
    • 1.10:300 Removing Imputation by Screening
    • 1.10:400 Disqualification of Firm After Disqualified Lawyer Departs
    • 1.10:500 Client Consent
  • 1.11 Rule 1.11 Successive Government and Private Employment
    • 1.11:100 Comparative Analysis of Delaware Rule
    • 1.11:200 Representation of Another Client by Former Government Lawyer
    • 1.11:300 Use of Confidential Government Information
    • 1.11:400 Government Lawyer Participation in Matters Related to Prior Representation
    • 1.11:500 Government Lawyer Negotiating for Private Employment
  • 1.12 Rule 1.12 Former Judge or Arbitrator
    • 1.12:100 Comparative Analysis of Delaware Rule
    • 1.12:200 Former Judge or Arbitrator Representing Client in Same Matter
    • 1.12:300 Negotiating for Future Employment
    • 1.12:400 Screening to Prevent Imputed Disqualification
    • 1.12:500 Partisan Arbitrators Selected by Parties to Dispute
  • 1.13 Rule 1.13 Organization as Client
    • 1.13:100 Comparative Analysis of Delaware Rule
    • 1.13:200 Entity as Client
    • 1.13:300 Preventing Injury to an Entity Client
    • 1.13:400 Fairness to Non-Client Constituents Within an Entity Client
    • 1.13:500 Joint Representation of Entity and Individual Constituents
  • 1.14 Rule 1.14 Client Under a Disability
    • 1.14:100 Comparative Analysis of Delaware Rule
    • 1.14:200 Problems in Representing a Partially or Severely Disabled Client
    • 1.14:300 Maintaining Client-Lawyer Relationship with Disabled Client
    • 1.14:400 Appointment of Guardian or Other Protective Action
  • 1.15 Rule 1.15 Safekeeping Property
    • 1.15:100 Comparative Analysis of Delaware Rule
    • 1.15:200 Safeguarding and Safekeeping Property
    • 1.15:300 Holding Money as a Fiduciary for the Benefit of Clients or Third Parties
    • 1.15:400 Dispute Over Lawyer's Entitlement to Funds Held in Trust
  • 1.16 Rule 1.16 Declining or Terminating Representation
    • 1.16:100 Comparative Analysis of Delaware Rule
    • 1.16:200 Mandatory Withdrawal
    • 1.16:300 Permissive Withdrawal
    • 1.16:400 Order by Tribunal to Continue Representation
    • 1.16:500 Mitigating Harm to Client Upon Withdrawal
    • 1.16:600 Fees on Termination
  • 1.17 Rule 1.17 Sale of Law Practice
    • 1.17:100 Comparative Analysis of Delaware Rule
    • 1.17:200 Traditional Rule Against the Sale of a Law Practice
    • 1.17:300 Problems in Sale of Practice
  • 1.18 Rule 1.18 Duties to Prospective Clients
    • 1.18:100 Comparative Analysis of Delaware Rule
    • 1.18:200 Definition of "Prospective Client"
    • 1.18:300 Confidentiality of Communications with a Prospective Client
    • 1.18:400 Conflicts of Interest Arising Out of Communications with a Prospective Clien

II. COUNSELOR

  • 2.1 Rule 2.1 Advisor
    • 2.1:100 Comparative Analysis of Delaware Rule
    • 2.1:200 Exercise of Independent Judgment
    • 2.1:300 Non-Legal Factors in Giving Advice
  • 2.2 Rule 2.2 Intermediary
    • 2.2:100 Comparative Analysis of Delaware Rule
    • 2.2:200 Relationship of Intermediation to Joint Representation
    • 2.2:300 Preconditions to Becoming an Intermediary
    • 2.2:400 Communication During Intermediation
    • 2.2:500 Consequences of a Failed Intermediation
  • 2.3 Rule 2.3 Evaluation for Use by Third Persons
    • 2.3:100 Comparative Analysis of Delaware Rule
    • 2.3:200 Undertaking an Evaluation for a Client
    • 2.3:300 Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]
    • 2.3:400 Confidentiality of an Evaluation
  • 2.4 Rule 2.4 Lawyer Serving as a Third-Party Neutral
    • 2.4:100 Comparative Analysis of Delaware Rule
    • 2.4:200 Definition of "Third-Party Neutral"
    • 2.4:300 Duty to Inform Parties of Nature of Lawyer's Role

III. ADVOCATE

  • 3.1 Rule 3.1 Meritorious Claims and Contentions
    • 3.1:100 Comparative Analysis of Delaware Rule
    • 3.1:200 Non-Meritorious Assertions in Litigation
    • 3.1:300 Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)
    • 3.1:400 Civil Liability for Abusive Litigation Practice [see 1.1:520]
    • 3.1:500 Complying with Law and Tribunal Rulings
  • 3.2 Rule 3.2 Expediting Litigation
    • 3.2:100 Comparative Analysis of Delaware Rule
    • 3.2:200 Dilatory Tactics
    • 3.2:300 Judicial Sanctions for Dilatory Tactics
  • 3.3 Rule 3.3 Candor Toward the Tribunal
    • 3.3:100 Comparative Analysis of Delaware Rule
    • 3.3:200 False Statements to a Tribunal
    • 3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud
    • 3.3:400 Disclosing Adverse Legal Authority
    • 3.3:500 Offering False Evidence
    • 3.3:600 Remedial Measures Necessary to Correct False Evidence
    • 3.3:700 Discretion to Withhold Evidence Believed to Be False
    • 3.3:800 Duty of Disclosure in Ex Parte Proceedings
  • 3.4 Rule 3.4 Fairness to Opposing Party and Counsel
    • 3.4:100 Comparative Analysis of Delaware Rule
    • 3.4:200 Unlawful Destruction and Concealment of Evidence
    • 3.4:300 Falsifying Evidence
    • 3.4:400 Knowing Disobedience to Rules of Tribunal
    • 3.4:500 Fairness in Pretrial Practice
    • 3.4:600 Improper Trial Tactics
    • 3.4:700 Advising Witness Not to Speak to Opposing Parties
  • 3.5 Rule 3.5 Impartiality and Decorum of the Tribunal
    • 3.5:100 Comparative Analysis of Delaware Rule
    • 3.5:200 Improperly Influencing a Judge, Juror, or Other Court Official
    • 3.5:300 Improper Ex Parte Communication
    • 3.5:400 Intentional Disruption of a Tribunal
  • 3.6 Rule 3.6 Trial Publicity
    • 3.6:100 Comparative Analysis of Delaware Rule
    • 3.6:200 Improper Extrajudicial Statements
    • 3.6:300 Permissible Statements
    • 3.6:400 Responding to Adverse Publicity
  • 3.7 Rule 3.7 Lawyer as Witness
    • 3.7:100 Comparative Analysis of Delaware Rule
    • 3.7:200 Prohibition of Advocate as Witness
    • 3.7:300 An Affiliated Lawyer as Advocate (Imputed Disqualification)
  • 3.8 Rule 3.8 Special Responsibilities of a Prosecutor
    • 3.8:100 Comparative Analysis of Delaware Rule
    • 3.8:200 The Decision to Charge
    • 3.8:300 Efforts to Assure Accused's Right to Counsel
    • 3.8:400 Seeking Waivers of Rights from Unrepresented Defendants
    • 3.8:500 Disclosing Evidence Favorable to the Accused
    • 3.8:600 Monitoring Extrajudicial Statements by Law Enforcement Officials
    • 3.8:700 Issuing a Subpoena to a Lawyer
    • 3.8:800 Making Extrajudicial Statements
    • 3.8:900 Peremptory Strikes of Jurors
  • 3.9 Rule 3.9 Advocate in Nonadjudicative Proceedings
    • 3.9:100 Comparative Analysis of Delaware Rule
    • 3.9:200 Duties of Advocate in Nonadjudicative Proceedings

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

  • 4.1 Rule 4.1 Truthfulness in Statements to Others
    • 4.1:100 Comparative Analysis of Delaware Rule
    • 4.1:200 Truthfulness in Out-of-Court Statements
    • 4.1:300 Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]
  • 4.2 Rule 4.2 Communication with Person Represented by Counsel
    • 4.2:100 Comparative Analysis of Delaware Rule
    • 4.2:200 Communication with a Represented Person
  • 4.3 Rule 4.3 Dealing with Unrepresented Person
    • 4.3:100 Comparative Analysis of Delaware Rule
    • 4.3:200 Dealing with Unrepresented Person
  • 4.4 Rule 4.4 Respect for Rights of Third Persons
    • 4.4:100 Comparative Analysis of Delaware Rule
    • 4.4:200 Disregard of Rights or Interests of Third Persons

V. LAW FIRMS AND ASSOCIATIONS

  • 5.1 Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer
    • 5.1:100 Comparative Analysis of Delaware Rule
    • 5.1:200 Duty of Partners to Monitor Compliance with Professional Rules
    • 5.1:300 Monitoring Duty of Supervising Lawyer
    • 5.1:400 Failing to Rectify the Misconduct of a Subordinate Lawyer
    • 5.1:500 Vicarious Liability of Partners
  • 5.2 Rule 5.2 Responsibilities of a Subordinate Lawyer
    • 5.2:100 Comparative Analysis of Delaware Rule
    • 5.2:200 Independent Responsibility of a Subordinate Lawyer
    • 5.2:300 Reliance on a Supervisor's Resolution of Arguable Ethical Issues
  • 5.3 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
    • 5.3:100 Comparative Analysis of Delaware Rule
    • 5.3:200 Duty to Establish Safeguards
    • 5.3:300 Duty to Control Nonlawyer Assistants
    • 5.3:400 Responsibility for Misconduct of Nonlawyer Assistants
  • 5.4 Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]
    • 5.4:100 Comparative Analysis of Delaware Rule
    • 5.4:200 Sharing Fees with a Nonlawyer
    • 5.4:300 Forming a Partnership with Nonlawyers
    • 5.4:400 Third Party Interference with a Lawyer's Professional Judgment
    • 5.4:500 Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations
  • 5.5 Rule 5.5 Unauthorized Practice of Law
    • 5.5:100 Comparative Analysis of Delaware Rule
    • 5.5:200 Engaging in Unauthorized Practice
    • 5.5:300 Assisting in the Unauthorized Practice of Law
  • 5.6 Rule 5.6 Restrictions on Right to Practice
    • 5.6:100 Comparative Analysis of Delaware Rule
    • 5.6:200 Restrictions on Lawyers Leaving a Firm
    • 5.6:300 Settlements Restricting a Lawyer's Future Practice
  • 5.7 Rule 5.7 Responsibilities Regarding Law-Related Services
    • 5.7:100 Comparative Analysis of Delaware Rule
    • 5.7:200 Applicability of Ethics Rules to Ancillary Business Activities

VI. PUBLIC SERVICE

  • 6.1 Rule 6.1 Pro Bono Public Service
    • 6.1:100 Comparative Analysis of Delaware Rule
    • 6.1:200 Lawyer's Moral Obligation to Engage in Public Interest Legal Service
  • 6.2 Rule 6.2 Accepting Appointments
    • 6.2:100 Comparative Analysis of Delaware Rule
    • 6.2:200 Duty to Accept Court Appointments Except for Good Cause
  • 6.3 Rule 6.3 Membership in Legal Services Organization
    • 6.3:100 Comparative Analysis of Delaware Rule
    • 6.3:200 Conflicts of Interest of Lawyers Participating in a Legal Services Organization
  • 6.4 Rule 6.4 Law Reform Activities Affecting Client Interests
    • 6.4:100 Comparative Analysis of Delaware Rule
    • 6.4:200 Conflicts of Interest of Lawyers Participating in Law Reform Organizations
  • 6.5 Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs
    • 6.5:100 Comparative Analysis of Delaware Rule
    • 6.5:200 Scope of Rule
    • 6.5:300 Special Conflict of Interest Rule

VII. INFORMATION ABOUT LEGAL SERVICES

  • 7.1 Rule 7.1 Communications Concerning a Lawyer's Services
    • 7.1:100 Comparative Analysis of Delaware Rule
    • 7.1:200 Lawyer Advertising--In General
  • 7.2 Rule 7.2 Advertising
    • 7.2:100 Comparative Analysis of Delaware Rule
    • 7.2:200 Permissible Forms of Lawyer Advertising
    • 7.2:300 Retaining Copy of Advertising Material
    • 7.2:400 Paying to Have Services Recommended
    • 7.2:500 Identification of a Responsible Lawyer
  • 7.3 Rule 7.3 Direct Contact with Prospective Client
    • 7.3:100 Comparative Analysis of Delaware Rule
    • 7.3:200 Prohibition of For-Profit In-Person Solicitation
    • 7.3:300 Regulation of Written and Recorded Solicitation
    • 7.3:400 Disclaimers for Written and Recorded Solicitation
    • 7.3:500 Solicitation by Prepaid and Group Legal Services Plans
  • 7.4 Rule 7.4 Communication of Fields of Practice
    • 7.4:100 Comparative Analysis of Delaware Rule
    • 7.4:200 Regulation of Claims of Certification and Specialization
  • 7.5 Rule 7.5 Firm Names and Letterheads
    • 7.5:100 Comparative Analysis of Delaware Rule
    • 7.5:200 Firm Names and Trade Names
    • 7.5:300 Law Firms with Offices in More Than One Jurisdiction
    • 7.5:400 Use of the Name of a Public Official
    • 7.5:500 Misleading Designation as Partnership, etc.

VIII. MAINTAINING THE INTEGRITY OF THE PROFESSION

  • 8.1 Rule 8.1 Bar Admission and Disciplinary Matters
    • 8.1:100 Comparative Analysis of Delaware Rule
    • 8.1:200 Bar Admission
    • 8.1:300 False Statements of Material Fact in Connection with Admission or Discipline
    • 8.1:400 Duty to Volunteer Information to Correct a Misapprehension
    • 8.1:500 Application of Rule 8.1 to Reinstatement Proceedings
  • 8.2 Rule 8.2 Judicial and Legal Officials
    • 8.2:100 Comparative Analysis of Delaware Rule
    • 8.2:200 False Statements About Judges or Other Legal Officials
    • 8.2:300 Lawyer Candidates for Judicial Office
  • 8.3 Rule 8.3 Reporting Professional Misconduct
    • 8.3:100 Comparative Analysis of Delaware Rule
    • 8.3:200 Mandatory Duty to Report Serious Misconduct
    • 8.3:300 Reporting the Serious Misconduct of a Judge
    • 8.3:400 Exception Protecting Confidential Information
  • 8.4 Rule 8.4 Misconduct
    • 8.4:100 Comparative Analysis of Delaware Rule
    • 8.4:200 Violation of a Rule of Professional Conduct
    • 8.4:300 Commission of a Crime
    • 8.4:400 Dishonesty, Fraud, Deceit and Misrepresentation
    • 8.4:500 Conduct Prejudicial to the Administration of Justice
    • 8.4:600 Implying Ability to Influence Public Officials
    • 8.4:700 Assisting Judge or Official in Violation of Duty
    • 8.4:800 Discrimination in the Practice of Law
    • 8.4:900 Threatening Prosecution
  • 8.5 Rule 8.5 Disciplinary Authority; Choice of Law