Legal Ethics

Ethics Opinions Substantively Affected by the Amended Rules (Effective 2/1/07)

Effective February 1, 2007, the D.C. Court of Appeals amended the D.C. Rules of Professional Conduct in the most comprehensive revision to the Rules since they first became effective on January 1, 1991. Although the vast majority of opinions issued by the D.C. Bar Legal Ethics Committee (“Committee”) prior to the effective date of the amended Rules are substantively unaffected by the amendments, there are some that simply no longer provide complete guidance in light of the recent changes. It is critical, therefore, that anyone who seeks guidance from a Committee opinion pay particular attention to the possibility that the Rules or Comments have changed in relevant ways since the opinion was published. Some of the changes are “non-substantive,” such as the renumbering of a Rule section or a Comment. In these circumstances, the Committee opinion remains valid, even though a particular citation to a Rule or a Comment may no longer be consistent with the current version. The Committee urges anyone consulting an opinion to read it in light of the revised Rules and Comments. In the table below, the Committee has identified those opinions that, in its judgment, are substantively affected by the amended Rules:

Opinions Substantively Affected by the Amended Rules (Effective 2/1/07)
Opinion
Relevant Changes
Opinion 211: Fee Agreements; Mandatory Arbitration Clauses D.C. Rule 1.8(g)(2) has been revised to clarify the conditions under which a lawyer may settle a claim or potential claim for malpractice. Comment [13] now explains that the Rule does not prohibit lawyers from entering into an agreement with the  client for mandatory arbitration of legal malpractice claims, and there is no requirement that the client have separate counsel before such an agreement is permissible.
Opinion 212: Representation by Law Firm Adverse to Former Client in a Substantially Related Matter After Lawyers Who Represented Former Client Have Left the Law Firm D.C. Rule 1.10(c) now permits a law firm to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm, so long as none of the remaining lawyers has any information protected by D.C. Rule 1.6 that is material to the matter.
Opinion 217: Multiple Representation;  Intermediation D.C. Rule 2.2 has been eliminated, and the discussion of intermediation and common representation has been moved to Comments [14] through [18] of D.C. Rule 1.7.
Opinion 218: Retainer Agreement Providing for Mandatory Arbitration of Fee Disputes Is Not Unethical Comment [1] to D.C. Rule 1.8 now explains that the requirements of paragraph (a) do not apply to ordinary fee arrangements between client and lawyer, which are governed by D.C. Rule 1.5. Moreover, Comment [13] to D.C. Rule 1.8 now explains that D.C. Rule 1.8 generally permits lawyers to enter into agreements to arbitrate any legal malpractice claim. 
Opinion 219: Conflict of Ethical Obligations D.C. Rule 1.6(d) now permits a lawyer whose services were used to further a crime or fraud to reveal client confidences and secrets under certain circumstances to prevent the crime or fraud or to mitigate the harm caused by a client’s crime or fraud. Because a lawyer is now permitted to make certain disclosures under D.C. Rule 1.6, the disclosure obligations under D.C. Rules 4.1(b) and 3.3(d) – both of which are expressly made subject to the obligations under D.C. Rule 1.6 – may now be broader. 
Opinion 232: Multiple Clients/Criminal Matter D.C. Rule 1.7(c) has been revised to require that each potentially affected client provide informed consent to a representation otherwise prohibited under paragraph (b) and that the lawyer reasonably believe that the lawyer will be able to provide competent and diligent representation to each affected client. 
Opinion 238: Written Fee Agreements D.C. Rule 1.5(b) has been revised to require that a written fee agreement describe not only the basis or rate of the fee but also the scope of the lawyer’s representation and the expenses for which the client will be responsible.
Opinion 243: Joint Representation in Divorce Cases D.C. Rule 2.2 has been eliminated, and the discussion of intermediation and common representation has been moved to Comments [14] through [18] of D.C. Rule 1.7.
Opinion 253: Referral Fee Arrangement Between Law Firms and Insurance Companies D.C. Rule 7.1(b)(5) has been eliminated. As a result, a portion of the opinion is no longer applicable – specifically, the discussion about the relationship between the prohibition on sharing fees with nonlawyers in D.C. Rule 5.4 and the provision in D.C. Rule 7.1(b)(5) that had permitted lawyers to pay referral fees to intermediaries under certain conditions.
Opinion 264: Refunds of Special Retainers; Commingling of Such Funds with the General Funds of the Law Firm Upon Receipt D.C. Rule 1.15(d) has been revised significantly since this opinion was issued. Most particularly, D.C. Rule 1.15(d) now provides that advances of unearned fees and unincurred costs shall be treated as property of the client. The opinion’s contrary determination was based on a prior version of D.C. Rule 1.15(d).[1]

 

Opinion 273: Ethical Considerations of Lawyers Moving From One Private Law Firm to Another D.C. Rule 1.10(c) now permits a firm to represent persons with interests materially adverse to those of a former client in matters which are the same as or substantially related to those in which a formerly associated lawyer represented the client while at the firm where none of the remaining lawyers has any information protected by D.C. Rule 1.6 that is material to the matter. The opinion’s contrary conclusion was based on the prior version of D.C. Rule 1.10(c).   
Opinion 275: Receipt of Confidential Information Bars Subsequent Representation of Another Client in the Same or a Substantially Related Matter Unless Screen Can Be Erected D.C. Rule 1.10(a) no longer contains the potential-client exception to the imputed disqualification of a law firm. That exception is now contained in a new rule, D.C. Rule 1.18(d).
Opinion 279: Availability of Screening as Cure for Imputed Disqualification D.C. Rule 1.10(a) no longer contains the potential client exception to the imputed disqualification of a law firm. That exception is now contained in a new rule, D.C. Rule 1.18(d).
Opinion 286: Contingent Referral Fees D.C. Rule 7.1(b)(5) has been eliminated. The opinion’s discussion of how the Rule marked a departure from prior ethics law and authorized certain payments to others for the referral of legal business is no longer applicable.
Opinion 294: Sale of Law Practice by Retiring Lawyer D.C. Rule 1.17 is new and governs the sale of a law practice. This rule (together with Comment [10]) authorizes the sale of a law practice so long as the sale is not financed by increases in fees charged to the transferred clients and existing arrangements between the transferring lawyer and the client as to fees and the scope of the work are honored by the purchasing lawyer. 
Opinion 296: Joint Representation: Confidentiality of Information D.C. Rule 2.2 has been eliminated, and Comments [14]-[18] to D.C. Rule 1.7 have been added to address special considerations in common representation. Moreover, D.C. Rule 1.6(d) now permits a lawyer whose services were used to further a crime or fraud to reveal client confidences and secrets under certain circumstances to prevent the crime or fraud or to mitigate the harm caused by a client’s crime or fraud.
Opinion 299: Duty of Confidentiality to the Corporate Client That Has Ceased Operations D.C. Rule 1.6(d) now permits a lawyer whose services were used to further a crime or fraud to reveal client confidences and secrets under certain circumstances to prevent the crime or fraud or to mitigate the harm caused by a client’s crime or fraud.
Opinion 302: Soliciting Plaintiffs for Class Action Lawsuits or Obtaining Legal Work Through Internet-based Web Pages D.C. Rule 7.1(b)(5) has been eliminated. As a result, a portion of the opinion is no longer applicable – specifically the discussion about the steps that a lawyer must take when paying fees to participate in a web-based bidding service to satisfy the conditions of D.C. Rule 7.1(b)(5).
Opinion 306: Practicing Law While Simultaneously Selling Insurance D.C. Rule 5.7 is new. It provides that a lawyer shall be subject to the Rules of Professional Conduct in the provision of services that might reasonably be performed in conjunction with and are related to the provision of law services. This opinion remains consistent with D.C. Rule 5.7, but it relied only on Comment [25] (now renumbered [36]) to D.C. Rule 1.7 for the conclusion that a lawyer may sell insurance products to clients so long as the lawyer makes full disclosure, obtains consent, and concludes that his or her professional judgment on behalf of the client will not be adversely affected.
Opinion 307: Participation in Government Program Requiring Payment of Percentage of Fee D.C. Rule 7.1(b)(5) has been eliminated. As a result, a portion of the opinion is no longer applicable – specifically, the discussion about the steps that a lawyer must take when paying to participate in a government-run schedule program for legal services to satisfy the conditions of D.C. Rule 7.1(b)(5).
Opinion 311: Choice-of-Law Rules for Professional Conduct in Non-Judicial Proceedings D.C. Rule 8.5(b)(1) now applies more broadly to conduct in connection with a “matter pending before a tribunal” rather than only in connection with a “proceeding in a court before which a lawyer has been admitted to practice.”
Opinion 329: Non-Profit Organization Fee Arrangement with an Attorney to Whom It Refers Matters D.C. Rule 5.4(a)(5) now provides that a lawyer may share legal fees with a nonprofit organization that employed, retained, or recommended employment of the lawyer in the matter and that qualifies as tax exempt under section 501(c)(3) of the Internal Revenue Code. The opinion’s requirement that reimbursements be permitted only to recoup the nonprofit’s out-of pocket expenses and not to provide some portion of the fees collected is no longer necessary given that D.C. Rule 5.4(a)(5) now expressly authorizes the sharing of legal fees under these circumstances.

[1]When Opinion 264 was published in 1996, D.C. Rule 1.15(d) provided that “[a]dvances of legal fees and costs become the property of the lawyer upon receipt. Any unearned amount of prepaid fees must be returned to the client at the termination of the lawyer’s services in accordance with Rule 1.16(d).” The D.C. Court of Appeals amended D.C. Rule 1.15(d), effective January 1, 2000, to clarify that, “[a]dvances of unearned fees and unincurred costs shall be treated as property of the client pursuant to paragraph (a) until earned or incurred unless the client consents to a different arrangement.” Although the D.C. Court of Appeals also made some minor modifications to D.C. Rule 1.15(d) in the most recent amendments that became effective on February 1, 2007, the earlier amendments to the rule are the ones directly relevant to Opinion 264.