of Ethics Online Collection: 1971
THE DELAWARE LAWYERS CODE OF PROFESSIONAL RESPONSIBILITY
Canon 1 DISCIPLINARY RULES
Lawyer Should Assist in Maintaining the DR 1-102. Misconduct Integrity and Competence of the Legal DR 1-103.
Disclosure of Information to Profession Authorities.
Canon 1 A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession DISCIPLINARY RULES
DR 1-102. Misconduct.
(A) A lawyer shall not:
(7) Engage in any conduct which may cause or assist in a breach in the confidentiality of records, investigations and proceedings of the Censor Committee of the Delaware Supreme Court as set forth in Censor Committee Rule 15.
(Amended, effective Dec. 18, 1975.)
INTERPRETIVE GUIDELINE NO. 3 Re: LAWYER'S INCOME TAXES
The following statements of principles are promulgated as interpretive guidelines in the application of Disciplinary Rule 1-102(A)(3) of the Delaware Lawyer's Code of Professional Responsibility:
Illegal conduct involving moral turpitude within the meaning of DR 1-102(A)(3) shall be deemed to include, but not be limited to, the following:
(1) Willful failure to make and file Federal, State, or City income tax returns or estimated income tax returns, or pay such estimated tax or taxes, or to supply information in connection therewith at the time or times required by law or regulations;
(2) Willful attempt in any manner to evade any Federal, State, or City income tax.
(Added, effective Apr. 8, 1975)
DR 1-103. Disclosure of Information to Authorities.
(C) A lawyer under investigation by the Censor Committee of the Supreme Court of Delaware shall, upon proper request of the Censor Committee or an investigating member or subcommittee of the Censor Committee, make available to the Censor Committee, its investigating members and subcommittees and their agents all books, records and other documents which may be pertinent to the subject of the investigation and which may not properly be withheld on the ground of privilege.
(Amended, effective Dec. 10, 1974.)
Canon 2
A Lawyer Should Assist the Legal Profession in Fulfilling Its Duty to Make Legal Counsel Available
DISCIPLINARY RULES
DR 2-103. Recommendations of Professional Employment.
INTERPRETIVE GUIDELINE NO. I RE: RESIDENTIAL REAL ESTATE TRANSACTIONS
The following statements of principles are promulgated as interpretive guidelines in the application to residential real estate transactions of Disciplinary Rules DR 2-103, DR 5-101(A), DR 5-105, and DR 5-107(A) and (B) of the Delaware Lawyer's Code of Professional Responsibility, promulgated March 22, 1971:
(a) Before accepting representation of a buyer or mortgagor of he residential property (including condominiums under the Unit Property Act of the State of Delaware), upon referral by the seller, lender, real estate agent, or other person having an interest in the transaction, it is the ethical duty of a lawyer to inform the buyer or mortgagor in writing at the earliest practicable time:
- That the buyer or mortgagor has the absolute right (regardless of any preference that the seller, real estate agent, lender, or other person may have and regardless of who is to pay attorney's fees) to retain a lawyer of his own choice to represent him throughout the are transaction, including the examination and certification of title, the preparation of documents, and the holding of settlement; and
- As to the identity of any other party having an interest in the transaction whom the lawyer may represent, including a statement that such other representation may be possibly conflicting and may adversely affect the exercise of the lawyer's professional judgment on behalf of the buyer or mortgagor in case of a dispute between the parties. For the purpose of this Guideline, a lawyer shall be deemed to have a "possibly conflicting" representation if he represents the seller or has represented the seller on a continuing basis in the past; or if he represents the real estate agent or has represented the real estate agent on a continuing basis in the past; or if he represents the lender has represented the lender on a continuing basis in the past.
(b) Unless a lawyer has been freely and voluntarily selected by the buyer or mortgagor after he has made to the buyer or mortgagor the statements and disclosures hereinabove required, the lawyer may not ethically:
(1) Certify, report, or represent for any purpose that the buyer or mortgagor is his client, or that the buyer or mortgagor is or was obligated for any legal service rendered by him in the transaction; or (2) Participate in causing the buyer or mortgagor, directly or indirectly, to bear any charge for his legal service; except that the lawyer for a lender may receive from the buyer or mortgagor, directly or indirectly, payment of the lender's reasonable and necessary legal expenses for preparation of documents at the request of the buyer's or mortgagor's lawyer, for attendance at settlement, and for title insurance properly specified by the lender (within the provisions of 18 Del. C. § 2317) but unobtainable by the buyer's or mortgagor's lawyer, provided that the buyer's or mortgagor's obligation to pay each such legal expense is particularized as a term and condition of the loan; or (3) Participate as the buyer's or mortgagor's lawyer in any transaction in which his representation of the buyer or mortgagor has been made a term or condition of the transaction, directly or indirectly. (c) The information supplied to the buyer or mortgagor in writing shall contain a description of the attorney's interest or interests sufficient to enable the buyer or mortgagor to determine whether he should obtain a different attorney. (Amended, effective Feb. 1, 1975.)
DR 2-106. Fees for Legal Services.
Reasonable compensation under 29 Del. C. § services of court-appointed counsel; (2) the ...... 4605. - In the light of the nature of the general hourly level of compensation paid to attorney's continuing duty to the court and the public prosecutors and public defenders in this essential element of regard for the public purse jurisdiction, and (3) applicable guidelines for under 29 Del. C. § 4605, the objective is to reasonable compensation set forth in the determine reasonable compensation, in Delaware Lawyer's Code of Professional Responsibility. Lindh v. O'Hara, Del. Supr. 325 accordance with prevailing standards, under the following criteria: (1) the "going rate" prevailingA.2d 84 (1974).
Canon 4
A Lawyer Should Preserve the Confidences and
Secrets of a Client
DISCIPLINARY RULES
DR 4-101. Preservation of Confidences and Secrets of a Client.
Purpose of the attorney-client privilege is to Privilege belongs to the client and not to the foster the confidence of the client and enable him attorney. Riggs Nat'l Bank v. Zimmer, Del. Ch., to communicate without fear in order to seek 355 A.2d 709 (1976). exception to the usual rules legal advice. Riggs Nat'l Bank v. Zimmer, Del, And is an exception., 355 A.2d 709 (1976). requiring full disclosure. its scope can be limited where circumstances so justify. Riggs
Canon 9
A Lawyer Should Avoid Even the Appearance of Professional Impropriety
DISCIPLINARY RULES
DR 9-102. Preserving Identity of Funds and Property of a Client.
INTERPRETIVE GUIDELINE NO. 2 RE: PRESERVING IDENTITY OF FUNDS AND PROPERTY OF CLIENT
The following statements of principles are promulgated as interpretive guidelines in the application of Disciplinary Rule 9-102 of the Delaware Lawyer's
Code of Professional Responsibility:
(a) As a minimum requirement, every attorney engaged in the private practice of law in the State of Delaware (hereinafter "Attorney") shall maintain on a current basis books and records which establish his compliance with DR 9-102, and which shall be preserved for at least five years following the completion of the year to which they relate, or, as to fiduciary or trust records, five years following the completion of that fiduciary obligation. For this purpose, the following books and records, or their equivalent, are suggested:
NON-FIDUCIARY FUNDS
(1) A cash receipts journal reflecting monies received on his own account such as fees received and other nontrust receipts. The receipts journal should identify the source of the receipt and show the date of the receipt. Receipts should be deposited intact and the duplicate deposit slip should be sufficiently detailed to identify each item.
(2) A cash disbursements journal reflecting monies disbursed on his own account for overhead and other expenditures.
(3) A record in the form of a fees book or file of copies of billing invoices reflecting all fees charged and other billings to clients (preferably pre-numbered invoices).
(4) Bank statements, cancelled checks, and duplicate deposit slips.
(5) A reconciliation of the cash balance derived from the cash receipts and disbursement journal totals, the check book balance and the bank statement balance at least quarterly (preferably monthly).
Wherever a male pronoun is used, it includes female, where applicable.
FIDUCIARY FUNDS (Including all funds held for clients or others):
(1) A cash receipts journal (separate from the nonfiduciary funds journal) listing the sources of the receipt and the date of the receipt. Receipts should be deposited intact and the duplicate deposit slip should be sufficiently detailed to identify each item.
(2) A disbursements journal listing the date of the disbursement and payee. All disbursements are to be made by check.
(3) A subsidiary ledger containing a separate page for each person or company for whom monies have been received in trust showing the date of the receipt and the amount, the date of the disbursement and the amount, and any unexpended balance.
(4) A monthly trial balance of the subsidiary ledger showing the name of the client and the balance of the client's account at the end of each month.
(a) The total of the monthly trial balance should agree with the control figure computed by taking the beginning balance, adding the total of monies received in the trust for the month and deducting the total of monies disbursed for the month.
(b) Monies disbursed for a client which exceed, monies received must be explained.
(5) A monthly reconciliation at month-end of the cash balance derived from the cash receipts and cash disbursement journal totals, the check book balance, the bank statement balance, and the subsidiary ledger trial balance total.
(6) Bank statements, cancelled checks, and duplicate deposit slips.
(7) A record showing all property, specifically identified, other than cash, held in trust from time to time for clients or others.
(8) As to real estate bank accounts, where separately maintained, it will be sufficient if they are reconciled each month, and a list of escrow funds held therein is maintained, reflecting the amounts held therein, the person for whom held, and the purpose for which held.
(b) On or before May 31, 1975, each Attorney shall file With the Trustees of the Clients' Security Trust Fund of the Bar of Delaware (hereinafter "Trustees") a certificate and respond to a questionnaire as follows:
- The certificate shall state that:
"I have read the Delaware Lawyer's Code of Professional Responsibility and have noted DR 9-102 and the guideline relating thereto. I am complying with the DR 9-102 and its guideline."
(2) The questionnaire shall require answers to the following questions relating to the Attorney's practice and may incorporate by reference, where appropriate, a statement filed by a partner or associate of the Attorney responding: lips.
(a) Name
(b) "Do you or your firm maintain a separate trust or escrow bank account for funds held in a fiduciary capacity, including your client's funds?"
(c) "Do you or your firm record receipts and deliveries of all funds, securities, and other properties of clients coming into your possession?"
(d) List the names of all banks or other places in which you or your firm maintain accounts which an attorney or an employee of your firm may draw on and in which funds of clients or other persons not associated with your firm are placed, the title of each account, and the account number of each account. (This question relates to escrow accounts.)
(e) List the names of all banks or other places in which you or your firm maintain accounts (other than those listed in response to paragraph (d) above) connected with your practice of law which you or some member or employee of your firm has power to control, draw on, or deposit in. (This question relates to firm nonescrow accounts.)
(c) On or before May 31, 1976, each Attorney shall respond to a similar questionnaire, and file a similar certificate with the Trustees. This second certificate and the questionnaire shall relate to the entire preceding 12 month period or calendar year. A similar certificate and questionnaire shall be completed and filed with the Trustees on or before May 31 of each year thereafter by each Attorney. Any attorney having filed a certificate pursuant to paragraph E hereof shall file a certificate pursuant to this paragraph within 30 days after paragraph E becomes inapplicable.
(d) Books of account and records of every Attorney are subject to examination by a person or firm, engaged and directed by the Trustees, for the purpose of verifying the accuracy of certificates filed by the Attorney. Such examinations shall be conducted so as to preserve the private and confidential nature of the Attorney's records insofar as is consistent with this Guideline, Supreme Court Rules, and Censor Committee Rules.
(e) This Guideline does not apply to any member of the Bar of this Court whose entire compensation derived from the practice of law during the preceding year was received in his capacity as an employee handling legal matters of a corporation or of an agency of the Federal, State, or local government, and who files with the Trustees on or before May 31 of any year a declaration setting forth that during the preceding 12 month period, or since his last filing, his practice has been so limited and that during that period he has not handled or been responsible for any clients' funds or valuables, other than funds or valuables belonging to his employer.
(f) On or before September 15 of each year, the Chairman of the Trustees of the Clients' Security Trust Fund will certify to the Clerk of the Supreme Court the name and address of any member of the Bar of this Court who has failed to comply with the requirements set forth herein for the filing of certificates and questionnaires with the Trustees. Thereupon, a rule will issue to such member to show cause why he or she should not be suspended member of the Bar of the Supreme Court, pending compliance therewith.
(Added, effective May 31, 1975; amended, effective Sept. 25, 1975.)
