ABA Model Rules of Professional Conduct (5)

美国律师协会《职业行为示范规则》（5）

说明：本英汉对照文本是根据美国律师协会（American Bar Association，ABA）2004年颁布的文本翻译整理而来，仅供个人作为完善中国律师行为准则参考和法律英语学习资料，请勿用于任何商业目的。

Rule 1.3: Diligence

规则1.3：勤勉尽责

A lawyer shall act with reasonable diligence and promptness in representing a client.

律师代理客户应当以合理程度的勤勉尽责和及时性行事。

Comment - Rule 1.3

评注—规则1.3

[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

[1]律师代理客户处理事务时应当不顾律师遭受的反对、障碍或个人不便，并且应当采取一切必要的合法和合乎道德的措施以证明客户的诉求或企图是正当的。律师还必须以忠诚于客户利益的方式行事并积极捍卫客户的立场。但是律师并无义务一定要努力争取有可能为客户实现的每一个好处。例如，律师可能有权凭借其专业判断以确定对某一项事务应当采取的处理方式。参见“规则1.2”。律师承担的合理勤勉尽责的义务并不要求律师采用令人反感的策略，也并不妨碍律师以礼貌和尊重对待参与法律程序的所有当事人。

[2] A lawyer's work load must be controlled so that each matter can be handled competently.

[2]律师承担的工作量必须得到控制以便每一项事务都能够获得称职的处理。

[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.

[3]也许最广受诟病的律师职业缺点是办事拖沓。客户的利益常常可能因为时间流逝或者情势变更而受到不利影响；在极端情形下，例如律师忽视有关时效规定的情形，客户的法律地位可能会被完全消灭。即使客户的利益未受到重大影响，不合理的延误也有可能造成客户不必要的焦虑并在无形中削弱客户对律师可靠性的信赖。但是，律师承担的合理及时行事的义务并不妨碍律师同意一项不会对其客户产生单方面不利影响的合理延期请求。

[4] Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.

[4]除非代理关系根据“规则1.16”的规定终止，否则律师应当持续工作直到为客户承办的所有事项终结。如果聘请律师的目的仅限于特定事项，则该事项解决时代理关系就终止了。如果律师已在相当长的期间就各种事务为一个客户提供了服务，有时候客户可能会推定该律师会继续提供服务，除非律师发出撤出代理工作的通知。有关是否继续存在客户－律师关系的疑问应当由律师澄清，最好是以书面形式，以防客户在律师已终止提供服务的情形下仍然错误地认为律师还在照管客户的事务。例如，如果律师已办理的一项司法或行政程序产生了不利于客户的结果，而律师和客户未就律师办理上诉的有关事项达成协议，那么律师必须就上诉的可能性与客户协商沟通，然后才能卸掉为该事项承担的责任。参见“规则1.4(a)(2) ”。律师是否有义务代理客户提起上诉取决于律师同意为客户提供的服务范围。参见“规则1.2”。

[5] To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer Disciplinary Enforcement (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer).

[5]为防止因个体执业者的死亡或丧失行为能力导致客户事务被遗漏，勤勉尽责义务可能要求每一个个体执业者都按照适用的规则准备一份计划，指定另一位称职的律师审阅客户案卷，将律师死亡或丧失行为能力的消息通知每一位客户，并确定是否有必要立即采取保护性行动。请参考《美国律师协会律师纪律惩戒示范规则》之“规则28”（该规则规定，如果不存在一份预案指定另一个律师来保护一名死亡或丧失行为能力的律师的客户的利益，应由法庭任命一名律师来编制案卷材料清单并采取其他保护性行动）。

Rule 1.4: Communication

规则1.4：沟通交流

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(a)律师应当：

(1)及时将《规则》要求客户作出如“规则1.0(e)”所定义的知情同意的任何决定或情形通知给客户；

(2)就达到客户目标应采用的手段或方式与客户进行合理的协商；

(3)使得客户始终对事务的状况有合理的了解；

(4)及时满足客户对信息的合理要求；

(5)当律师知道客户期望得到《职业行为规则》或其他法律不允许的帮助时，与客户就律师行为受到的任何相关限制进行协商沟通。

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(b)律师就某一事项向客户所做的解释应当达到合理必要的详尽程度以便客户能够就代理工作作出知情决定。

Comment - Rule 1.4

评注—规则1.4

[1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.

[1]为了客户能够有效地参与代理事项，律师与客户之间的合理信息交流是必要的。

Communicating with a Client

与客户的信息交流

[2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).

[2]如果本《规则》要求有关代理事项的特定决定应由客户作出，则(a)(1)款要求律师在采取行动之前及时与客户协商沟通并获得客户的同意，除非此前与客户的讨论已经确定客户想要律师采取的行为。例如，律师在民事纠纷案件中收到对方律师提出的和解条件或者在刑事案件中收到检察官建议的认罪辩诉交易条件时，必须及时将其实质内容通知客户，除非此前客户已表明此等提议是可接受的或不可接受的或者已授权律师接受或拒绝此等提议。参见“规则1.2(a)”。

[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about the means to be used to accomplish the client's objectives. In some situations, depending on both the importance of the action under consideration and the feasibility of consulting with the client, this duty will require consultation prior to taking action. In other circumstances, such as during a trial when an immediate decision must be made, the exigency of the situation may require the lawyer to act without prior consultation. In such cases the lawyer must nonetheless act reasonably to inform the client of actions the lawyer has taken on the client's behalf. Additionally, paragraph (a)(3) requires that the lawyer keep the client reasonably informed about the status of the matter, such as significant developments affecting the timing or the substance of the representation.

[3] (a)(2)款要求律师就达到客户目标应采取的手段和方法与客户进行合理的协商。在某些情形下，取决于所考虑的行动的重要性以及与客户沟通协商的可行性，此项职责要求在采取行动之前进行协商。在其他情形下，比如在必须立即作出决定的审判过程中，由于形势所迫可能要求律师不经事先协商即采取行动。即使是在此等情形下，律师也必须合理行事以将律师代表客户采取的行动告知客户。此外，(a)(3)款还要求律师要保证客户持续合理了解代理事务的进展状况，包括新出现的影响代理事项的时间安排和实质内容的重要情况。

[4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged.

[4]律师与客户定期交流沟通会最大限度减少客户有必要就代理事项向律师索取信息的情形。但是，当客户提出索取信息的合理请求时，(a)(4)款要求律师及时满足此等请求，如果不可能及时作出答复，则律师或者律师的辅助人员应当确认受到请求并将预计的答复时间告知客户。客户的电话应当及时回复或确认。

Explaining Matters

解释事务

[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client's best interests, and the client's overall requirements as to the character of representation. In certain circumstances, such as when a lawyer asks a client to consent to a representation affected by a conflict of interest, the client must give informed consent, as defined in Rule 1.0(e).

[5]客户应当拥有充分的信息以便能够在其意愿和能力限度内明智地参与决定代理目标以及达到目标应采取的手段或方式。沟通交流是否充分部分取决于所涉及的建议或协助的种类。例如，如果有时间解释协商过程中的一份提议，律师应当在达成协议之前与客户一道审核所有重要条款。在诉讼中，律师应当解释一般的策略和成功的可能性，并且通常应当就可能导致大额费用或者可能损害或强制他人的策略征求客户意见。另一方面，律师通常不必详细描述审判或谈判策略。应遵循的指导原则是，律师应当履行为客户最佳利益而行事的义务，满足客户对信息的合理预期并遵守客户对代理性质的概括性要求。在特定情形下，比如当律师请求客户同意一项受到利益冲突影响的代理时，客户给予的必须是“规则1.0(e)”所定义的知情同意。

[6] Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.

[6]一般来说，提供的信息应当是适合有理解能力并能够承担责任的成年人的信息。但是，按照这个标准对客户进行充分告知可能是不切实际的，比如当客户是一个小孩或者限制行为能力者时。参见“规则1.14”。当客户是一个组织或群体时，将其法律事务的有关信息告知其每一个成员常常是不可能或不适当的；通常，律师应当将信息资料发送给该组织的适当官员。见“规则1.13”。在涉及很多常规事项时，可以与客户安排一个有限的或不定期的报告机制。

Withholding Information

隐瞒信息

[7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer's own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.

[7]在某些情形下，当客户有可能对一份即时告知的信息作出鲁莽反应时，律师迟延发送信息就可能是正当的。因此，律师可能隐瞒对客户的精神病诊断结论，如果精神病专家表示披露该结论会伤害该客户的话。律师不得隐瞒信息以谋取律师个人利益或便利或者为他人谋取利益或便利。有关诉讼的规则或法庭命令可能要求提供给律师的信息不得披露给客户。“规则3.4(c)”为遵守此等规则或命令提供了指导。