职业行为规则:范围

 

[1] The 职业行为准则 (规则) are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the 规则 are imperatives, cast in the terms “shall” or “shall not.” These define proper conduct for purposes of professional discipline. 其他人, 通常用“may”这个词来表示,” are permissive and define areas under the 规则 in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other 规则 define the nature of relationships between the lawyer and others. The 规则 are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s professional role. 许多评论使用了“应该”这个词.” Comments do not add obligations to the 规则 but provide guidance for interpreting the 规则 and practicing in compliance with them.

     [2] The 规则 presuppose a larger legal context shaping the lawyer’s role. That context includes court rules and statutes relating to matters of licensure, 规定澳门赌场官网具体义务的法律, 以及一般的实体法和程序法. 遵守规则, 就像开放社会的所有法律一样, depends primarily upon understanding and voluntary compliance, 其次，在同行和公众舆论的支持下, 最后, 在必要的时候, 经纪律程序强制执行后. 规则没有, 然而, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The 规则 simply provide a framework for the ethical practice of law.

     [3] Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. The Rule presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. 此外, the 规则 presuppose that whether or not discipline should be imposed for a violation, 以及制裁的严重性, 视情况而定, 比如违章的任性和严重程度, 情有可原的因素, 以及之前是否有违规行为.

     [4]本规则无, 与它们相关的注释, or this 范围 section is intended to 扩大 or restrict existing law regarding the liability of lawyers to others or the requirements that the testimony of expert witnesses or other modes of proof must be employed in determining the scope of a lawyer’s duty to others. 此外, nothing in the 规则 or associated Comments or this 范围 section is intended to confer rights on an adversary of a lawyer to enforce the 规则 in a proceeding other than a disciplinary proceeding. Some judicial decisions have considered the standard of conduct established in these 规则 in determining the standard of care applicable in a proceeding other than a disciplinary proceeding. A tribunal presented with claims that the conduct of a lawyer appearing before that tribunal requires, 例如, disqualification of the lawyer and/or the lawyer’s firm may take such action as seems appropriate in the circumstances, 这可能会取消资格，也可能不会.

     [5]在解释本规则时, the specific shall control the general in the sense that any rule that specifically addresses conduct shall control the disposition of matters and the outcome of such matters shall not turn upon the application of a more general rule that arguably also applies to the conduct in question. In a number of instances, there are specific 规则 that address specific types of conduct. The Rule of interpretation expressed here is meant to make it clear that the general Rule does not supplant, 修改, 扩大, 或者扩展特定的规则. 例如，规则1的一般条款.3 are not intended to govern conflicts of interest, which are particularly discussed in 规则 1.7, 1.8和1.9. 因此, conduct that is proper under the specific conflicts 规则 is not improper under the more general rule of Rule 1.3. Except where the principle of priority stated here is applicable, 然而, compliance with one rule does not generally excuse compliance with other 规则. 相应的, once a lawyer has analyzed the ethical considerations under a given rule, the lawyer must generally extend the analysis to ensure compliance with all other applicable 规则.

     [6] The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. This note on 范围 provides general orientation and general rules of interpretation. The Comments are intended as guides to interpretation, but the text of each Rule is controlling.