《职业行为示范规则》（11）：“规则1.15保管财产”和“规则1.16拒绝和终止代理”
2014-04-27 19:37阅读：1,395
ABA Model Rules of Professional
Conduct (11)
美国律师协会《职业行为示范规则》（11）
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规范的参考资料以及法律英语学习资料，请勿用于任何商业目的。
Rule 1.15 Safekeeping
Property
规则1.15 保管财产
(a) A lawyer shall hold
property of clients or third
persons that is in a
lawyer's possession in connection
with a representation separate
from the lawyer's own property.
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unds
shall be kept in a
separate account maintained in
the state where the lawyer's
office is situated, or elsewhere
with the consent of the
client or third person. Other
property shall be identified as
such and appropriately safeguarded.
Complete records of such account
funds and other property shall
be kept by the lawyer and
shall be preserved for a
period of [five years] after
termination of the
representation.
(a)
律师对持有的与代理工作相关的客户或第三人财产应当与自有财产分开保管。资金应当存放于单独的银行账户，而此等账户的开户银行应当是在律师事务所所在的州内的银行或者客户或第三人同意的其他地方的银行。其他财产应当被明确识别为客户财产并得到妥善保护。律师应当保留关于此等账户资金和其他财产的完整记录，保存时间自代理工作终止之日起五年。
(b) A lawyer may deposit
the lawyer's own funds in
a client trust account for
the sole purpose of paying
bank service charges on that
account, but only in an
amount necessary for that
purpose.
(b)
律师可以把自有资金存放于客户信托账户，但仅限于为偿还对该账户所收取的银行服务费的目的，而且仅限于为实现该目的所必要的金额。
(c) A lawyer shall deposit
into a client trust account
legal fees and expenses that
have been paid in advance,
to be withdrawn by the
lawyer only as fees are
earned or expenses
incurred.
(c)
律师应当将客户已预付的法律服务费和其他费用存入客户信托账户，并按照实际提供服务和实际发生费用的进度从该账户中提取相应的款项。
(d) Upon receiving funds or
other property in which a
client or third person has
an interest, a lawyer shall
promptly notify the client or
third person. Except as stated
in this rule or otherwise
permitted by law or by
agreement with the client, a
lawyer shall promptly deliver to
the client or third person
any funds or other property
that the client or third
person is entitled to receive
and, upon request by the
client or third person, shall
promptly render a full
accounting regarding such
property.
(d)
在收到客户或第三人享有利益的资金或其他财产后，律师应当及时通知客户或第三人。除本条规则明文规定或者其他法律或与客户的协议所允许的情形外，律师应当及时向客户或第三人交付他们有权接收的任何资金或其他财产，并且应当在客户或第三人提出要求后及时提交关于此等财产的完整报告。
(e) When in the course of
representation a lawyer is in
possession of property in which
two or more persons (one
of whom may be the
lawyer) claim interests, the
property shall be kept separate
by the lawyer the dispute
is resolved. The lawyer shall
promptly distribute all portions
of the property as to
which the interests are not
in dispute.
(e)
如果律师在代理过程中占有了两人或多人（其中可能包括律师）都声称对其享有权益的财产，则该财产应当由律师单独存放起来直到纠纷得到解决。律师应当及时分配财产中不存在权益纠纷的所有部分。
Comment - Rule
1.15
评注-规则1.15
[1] A lawyer
should hold property of others
with the care required of
a professional fiduciary. Securities
should be kept in a safe
deposit box, except when some
other form of safekeeping is
warranted by special circumstances.
All property that is the
property of clients or third
persons, including prospective clients,
must be kept separate from
the lawyer's business and
personal property and, if
monies, in one or more
trust accounts. Separate trust
accounts may be warranted when
administering estate monies or
acting in similar fiduciary
capacities. A lawyer should
maintain on a current basis
books and records in accordance
with generally accepted accounting
practice and comply with any
recordkeeping rules established by
law or court order. See,
e.g., ABA Model Financial
Recordkeeping Rule.
[1]
律师应当以对专业受托人要求的注意程度保管他人的财产。有价证券应当存放于安全的保管箱内，除非特殊情况要求采用其他某种安全保管措施。所有属于客户（包括潜在的客户）或第三人的财产必须与律师的商业和个人财产分开保管，并且如果是资金，应存放于一个或多个信托账户。当管理遗产资金或承担类似受托人职责时，可能有必要设立不同的信托账户。律师应当遵照通用会计准则规定建立和保留以现金收付为基础的会计账簿，并遵守法律或法庭命令所确立的任何有关保存记录的规则。请参见《美国律师协会财务记录示范规则》等。
[2] While normally it is
impermissible to commingle the
lawyer's own funds with client
funds, paragraph (b) provides
that it is permissible when
necessary to pay bank service
charges on that account.
Accurate records must be kept
regarding which part of the
funds are the lawyer's.
[2]
尽管通常而言不允许将律师自有资金与客户资金混同，但(b)款规定这种情况在需要支付该账户的银行服务费时是允许的。但是必须保存准确的记录以显示哪些部分资金是属于律师自己的。
[3] Lawyers often receive funds
from which the lawyer's fee
will be paid. The lawyer
is not required to remit
to the client funds that
the lawyer reasonably
believes represent fees
owed. However, a lawyer may
not hold funds to coerce
a client into accepting the
lawyer's contention. The disputed
portion of the funds must
be kept in a trust
account and the lawyer should
suggest means for prompt
resolution of the dispute, such
as arbitration. The undisputed
portion of the funds shall
be promptly distributed.
[3]
律师常常收到其中一部分将用于支付律师服务费的资金。虽然并不要求律师将其合理认为相当于所欠律师费的那部分资金汇付给客户，但是律师不得扣留客户资金以迫使客户接受律师的主张。有争议的那部分资金应当存放在信托账户中，而且律师应当提出及时解决争议的建议方案，比如仲裁等。而没有争议的那部分资金应当及时分配。
[4] Paragraph (e) also recognizes
that third parties may have
lawful claims against specific
funds or other property in
a lawyer's custody, such as
a client's creditor who has
a lien on funds recovered
in a personal injury action.
A lawyer may have a duty
under applicable law to protect
such third-party claims against
wrongful interference by the
client. In such cases, when
the third-party claim is not
frivolous under applicable law,
the lawyer must refuse to
surrender the property to the
client until the claims are
resolved. A lawyer should not
unilaterally assume to arbitrate
a dispute between the client
and the third party, but,
when there are
substantial grounds
for dispute as to the
person entitled to the funds,
the lawyer may file an
action to have a court
resolve the dispute.
[4]
(e)款也确认这种可能性，即第三方可能对律师保管的特定资金或其他财产享有合法的诉求，比如对在人身损害赔偿案件中获得的赔偿金额享有扣押权的客户的债权人。根据适用的法律规定，律师可能有义务保护此等第三方诉求以避免受到客户的不当干扰。在此等情形下，如果第三方的诉求根据适用的法律并不属于明显无意义之诉，律师就必须拒绝向客户交付相关财产直到相关诉求得到解决为止。律师不得单方面主动裁判客户与第三方之间的纠纷，但是如果就谁有权拥有相关资金而言存在实质性的争议基础，则律师可以提起诉讼以便让法庭来解决该纠纷。
[5] The obligations of a
lawyer under this Rule are
independent of those arising
from activity other than
rendering legal services. For
example, a lawyer who serves
only as an escrow agent
is governed by the applicable
law relating to fiduciaries even
though the lawyer does not
render legal services in the
transaction and is not governed
by this Rule.
[5]
律师根据本条规则承担的义务独立于因提供法律服务之外的其他活动产生的义务。例如，仅担任托管代理人的律师尽管在该交易中没有提供法律服务因而不受本条规则的制约，但应当遵守与信托受托人相关的适用法律规定。
[6] A lawyers' fund for
client protection provides a
means through the collective
efforts of the bar to
reimburse persons who have lost
money or property as a
result of dishonest conduct of
a lawyer. Where such a
fund has been established, a
lawyer must participate where it
is mandatory, and, even when
it is voluntary, the lawyer
should participate.
[6]
专门用于客户保护目的的律师基金可提供一个途径，以便通过律师界的集体努力来为因律师不诚信行为而遭受金钱或财产损失的人提供赔偿。如果已建立这样的基金而且是强制性的，则律师必须参与此等基金计划；即使是自愿性的，律师也应当参加。
Rule 1.16 Declining or
Terminating Representation
规则1.16 拒绝或终止代理
(a) Except as stated in
paragraph (c), a lawyer shall
not represent a client or,
where representation has commenced,
shall withdraw from the
representation of a client
if:
(1) the representation will
result in violation of the
Rules of Professional Conduct or
other law;
(2) the lawyer's physical or
mental condition materially impairs
the lawyer's ability to
represent the client; or
(3) the
lawyer is discharged.
(a) 除非下述(c)款另有说明，如果出现下述情形之一，律师不得代理某一客户，或者在相关代理已开始的情况下，应当撤出代理某一客户的工作：
(1)
该项代理会导致违反《职业行为规则》或其他法律的后果；
(2)
律师的身体或精神状况损害了该律师代理客户的能力；或者
(3) 律师已被解聘。
(b) except as stated in
paragraph (c), a lawyer may
withdraw from representing a
client if:
(1)
withdrawal can be accomplished
without material adverse effect
on the interests of the
client;
(2) the client persists
in a course of action
involving the lawyer's services
that the lawyer reasonably
believes is criminal or
fraudulent;
(3) the client
has used the lawyer's services
to perpetrate a crime or
fraud;
(4) the client
insists upon taking action that
the lawyer considers repugnant
or with which the lawyer
has a fundamental
disagreement;
(5) the client fails
substantially to fulfill an
obligation to the lawyer
regarding the lawyer's services
and has been given reasonable
warning that the lawyer will
withdraw unless the obligation
is fulfilled;
(6) the representation will
result in an unreasonable
financial burden on the lawyer
or has been rendered
unreasonably difficult by the
client; or
(7) other good cause for
withdrawal exists.
(b) 除非下述(c)款另有说明，如果出现下述情形之一，律师可以撤出代理某一客户的工作：
(1) 撤出不会对客户利益造成严重不利影响；
(2) 客户坚持其行动方案，而此等行动方案涉及律师提供的服务而且律师合理认为是犯罪或欺诈性的；
(3) 客户已利用律师的服务实施一项犯罪或欺诈；
(4) 客户坚持要采取某项律师认为是令人反感的或者律师持有重大不同意见的行动；
(5) 客户未能向律师实质性地履行一项与律师服务相关的义务，而且已得到合理警告，即若不履行该义务，律师就会撤出代理；
(6)
代理会导致律师承担不合理的财务负担，或者代理工作已因客户的原因而变得不合理地困难；或者
(7) 存在其他撤出代理的充分理由。
(c) A lawyer must comply
with applicable law requiring
notice to or permission of
a tribunal when
terminating a representation. When
ordered to do so by a
tribunal, a lawyer shall
continue representation notwithstanding
good cause for terminating the
representation.
(c)
律师必须遵守适用法律关于终止代理需经过通知或法庭批准的规定。尽管存在撤出代理的充分理由，但是当法庭命令律师继续代理时，律师就应当继续此等代理工作。
(d) Upon termination of
representation, a lawyer shall
take steps to the extent
reasonably practicable to
protect a client's interests,
such as giving reasonable
notice to the client,
allowing time for employment of
other counsel, surrendering papers
and property to which the
client is entitled and refunding
any advance payment of fee
or expense that has not
been earned or incurred. The
lawyer may retain papers
relating to the client to
the extent permitted by other
law.
(d)
在终止代理时，律师应在合理可行的范围内采取必要措施保护客户利益，比如合理提前通知客户，给予客户时间以聘请其他法律顾问，向客户交付其有权得到的文件资料和财产，返还尚未提供代理服务或尚未实际发生但客户已预付的律师服务费和其他费用等。律师可以在其他法律允许的范围内保留与客户相关的文件资料。
Comment - Rule
1.16
评注-规则1.16
[1] A lawyer
should not accept representation
in a matter unless it can
be performed competently, promptly,
without improper conflict of
interest and to completion.
Ordinarily, a representation in
a matter is completed when
the agreed-upon assistance has
been concluded. See Rules
1.2(c) and
6.5. See also
Rule 1.3, Comment
[4].
[1]
律师如果不能在不存在任何不当利益冲突情况下称职、及时、完整地执行代理工作，就不应当承接相关的代理委托。通常而言，当与客户商定的协助工作已完成时即视为某一事项的代理工作已得到完整的执行。请参见“规则1.2(c)和6.5”。另请参见“规则1.3”的“评注[4]”。
Mandatory Withdrawal
强制撤出
[2] A lawyer
ordinarily must decline or
withdraw from representation if
the client demands that the
lawyer engage in conduct that
is illegal or violates the
Rules of Professional Conduct or
other law. The lawyer is
not obliged to decline or
withdraw simply because the
client suggests such a course
of conduct; a client may
make such a suggestion in
the hope that a lawyer
will not be constrained by
a professional obligation.
[2]
如果客户要求律师从事违法的或者违反《职业行为规则》或其他法律规定的行为，则律师通常应当拒绝承接或撤出代理。但并不要求律师仅因为客户提出此等行为的建议就拒绝或撤出，客户提出此等建议可能是希望律师不要受到职业道德义务的限制。
[3] When a lawyer has been
appointed to represent a client,
withdrawal ordinarily requires approval
of the appointing authority. See
also Rule 6.2.
Similarly, court approval or
notice to the court is
often required by applicable law
before a lawyer withdraws from
pending litigation. Difficulty may
be encountered if withdrawal is
based on the client's demand
that the lawyer engage in
unprofessional conduct. The court
may request an explanation for
the withdrawal, while the lawyer
may be bound to keep
confidential the facts that
would constitute such an
explanation. The lawyer's statement
that professional considerations
require termination of the
representation ordinarily should be
accepted as sufficient. Lawyers
should be mindful of their
obligations to both clients and
the court under Rules
1.6 and
3.3.
[3]
如果律师是接受指派代理某一客户，则撤出此等代理工作通常应当得到指派机构的批准。另请参见“规则6.2”。类似地，在撤出某项未决诉讼的代理工作之前，适用法律规定也常常要求法庭批准或通知法庭。如果撤出代理是基于客户要求律师从事违反职业道德的行为这样的理由，可能会遇到一些困难。法庭可能要求对撤出作出解释，而律师又可能受到保密义务的约束，而且要保密的信息本身又构成了解释的对象。律师作出的因职业道德方面的考虑而不得不终止代理的声明一般应当被作为充分的解释而予以接受。律师应当注意其根据“规则1.6和3.3”向客户和法庭两方面承担的义务。
Discharge
解聘
[4] A client
has a right to discharge
a lawyer at any time,
with or without cause, subject
to liability for payment for
the lawyer's services. Where
future dispute about the
withdrawal may be anticipated,
it may be advisable to
prepare a written
statement reciting the
circumstances.
[4]
客户有权随时解聘律师，无论有无正当理由，但必须承担支付律师服务费的责任。如果预计将来可能就撤出代理问题发生纠纷，最好是准备一份说明文件详细说明有关具体情况。
[5] Whether a client can
discharge appointed counsel may
depend on applicable law. A
client seeking to do so
should be given a full
explanation of the consequences.
These consequences may include a
decision by the appointing
authority that appointment of
successor counsel is unjustified,
thus requiring self-representation by
the client.
[5]
客户是否可以解聘指派的代理律师可能取决于适用的法律规定。应当向要求解聘此等代理律师的客户详细说明后果，包括指派律师的机构可能会认定已无正当理由为该客户指定接替律师，因此会要求该客户自我代理。
[6] If the client has
severely diminished capacity, the
client may lack the legal
capacity to discharge the
lawyer, and in any event
the discharge may be seriously
adverse to the client's
interests. The lawyer should
make special effort to help
the client consider the
consequences and may take
reasonably necessary
protective action as provided in
Rule 1.14.
[6]
如果客户严重丧失行为能力，可能缺乏解聘律师的法律行为能力，而且在任何情形下解聘律师都可能严重损害客户自身利益。律师应当作出特别努力以帮助客户理解相关后果并且可以根据“规则1.14”的规定采取合理必要的保护性措施。
Optional Withdrawal
非强制性撤出
[7] A lawyer
may withdraw from representation
in some circumstances. The
lawyer has the option to
withdraw if it can be
accomplished without material adverse
effect on the client's
interests. Withdrawal is also
justified if the client persists
in a course of action
that the lawyer reasonably
believes is criminal or
fraudulent, for a
lawyer is not required to
be associated with such conduct
even if the lawyer does
not further it. Withdrawal is
also permitted if the lawyer's
services were misused in the
past even if that would
materially prejudice the client.
The lawyer may also withdraw
where the client insists on
taking action that the lawyer
considers repugnant or with
which the lawyer has a
fundamental disagreement.
[7]
在某些情形下律师可以撤出代理。如果能够在不对客户利益产生严重不利影响的情况下撤出代理，则律师有撤出的选择权。如果客户坚持采取律师合理认为具有犯罪或欺诈性质的行动方案，也可以构成律师撤出的正当理由，因为律师即使没有助长此等不当行为，也没有必要一定与此等行为发生关联。如果律师的服务曾经在过去被滥用过，即使撤出代理会对客户产生严重不利影响，也是允许的。当客户坚持要采取某项律师认为是令人反感的或者律师持有重大不同意见的行动时，律师也可以撤出代理。
[8] A lawyer may withdraw
if the client refuses to
abide by the terms of an
agreement relating to the
representation, such as an
agreement concerning fees or
court costs or an agreement
limiting the objectives of the
representation.
[8]
如果客户拒绝遵守与代理相关的协议条款，比如关于服务费或诉讼费的协议条款或者限制代理目标的协议条款，则律师可以撤出代理。
Assisting the Client upon
Withdrawal
在撤出时对客户给予协助
[9] Even if
the lawyer has been unfairly
discharged by the client, a
lawyer must take all
reasonable steps to
mitigate the consequences to the
client. The lawyer may retain
papers as security for a
fee only to the extent
permitted by law. See
Rule 1.15.
[9]
即使已被客户不公平地解聘，律师也必须采取一切合理措施以减轻对客户造成的不利后果。律师仅得在法律允许的限度内保留文件资料作为收取律师费的担保。请参见“规则1.15”。
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