Washington Lawyer

Speaking of Ethics: Proposed Changes to the D.C. Rules of Professional Conduct

From Washington Lawyer, July/August 2005

By Lisa Y. Weatherspoon

Illustration by Mick Wiggins On June 23 the D.C. Bar Board of Governors submitted to the D.C. Court of Appeals the Rules of Professional Conduct Review Committee’s report and recommendations proposing changes to the D.C. Rules of Professional Conduct.

This month’s “Speaking of Ethics” column contains excerpts of the report, highlighting the most significant proposals. The full report may be viewed online at www.dcbar.org/
about-the-bar/reports
. Additional comments about the proposals may be made during the court’s public comment period.

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Rule 1.6—Client Confidences. We are recommending adoption of a permissive disclosure option when a lawyer’s services have been used to further a crime or fraud and disclosure of client confidences or secrets is necessary to prevent, mitigate, or rectify reasonably certain substantial injury to the financial interest or property of a third party. The disclosure is limited to the extent reasonably necessary to accomplish the ends specified, and Comments to Rule 1.6 and related Comments to Rule 4.1 stress that less drastic options, e.g., withdrawal or “noisy withdrawal,” remain sufficient in many circumstances.

This limited disclosure option is consistent with the policy underlying the crime-fraud exception to the attorney– client privilege, which strips otherwise privileged information of protection when a client abuses a lawyer’s services by employing them to further a crime or fraud. A new cross-reference to Rule 1.6 in Rule 4.1 points out that, if a lawyer’s failure to disclose information about client crime or fraud that was furthered by use of the lawyer’s services would constitute the lawyer’s own assistance in the client’s crime or fraud, Rule 4.1 requires the lawyer to make disclosure reasonably necessary to prevent such assistance. We also recommend adding an ABA provision that explicitly permits a lawyer to disclose confidential information to another lawyer from whom the first lawyer seeks advice on compliance with the law or the ethical rules. Because of the additional proposed exceptions to Rule 1.6, we are proposing clarifying amendments to Comments to Rules 2.3, 3.3, 3.4, 4.1, 8.1, and 8.3.

Rule 1.7—Conflicts of Interest. We recommend retaining the fundamental structure of the D.C. version of Rule 1.7, which departs significantly in form but not substance from the Model Rule counterpart. We propose adding a new Rule 1.7(c)(2) to clarify that a lawyer should not seek consent to joint representation unless the lawyer reasonably believes that the lawyer can provide competent and diligent representation to each affected client. We do not recommend the ABA’s requirement that all conflict waivers be in writing, but we do recommend modifying a Comment to emphasize that it is ordinarily prudent for lawyers to obtain written informed consent.

Rule 1.8—Transactions with Clients. The Rules Review Committee decided not to recommend the ABA’s categorical prohibition of sexual relationships between lawyers and clients. Instead, it recommended new Comments to Rule 1.7, identifying the potential conflict of interest issues that can arise from sexual relations with clients.

Rule 1.10—Imputed Disqualification. We have been persuaded by the Committee’s analysis that the basic structure of the D.C. Rule regulating imputed disqualification should remain unchanged, notwithstanding its significant differences in format from the counterpart Model Rule. Consistent with the Model Rule, we are recommending adoption of an exception from the general rule of imputed disqualification of other lawyers in a firm, namely when one lawyer is disqualified because of a personal interest that is unlikely to affect the other lawyers’ adherence to professional standards. Also consistent with the Model Rules, we recommend the repeal of the D.C. provision that essentially forbids a law firm from representing a new client whose interests are adverse to those of a former firm client in the same or substantially related matter, even if the lawyers who have protected information about the former client have left the firm.

Rule 1.11 and 1.12—Government Lawyers, Judges, and Law Clerks. Consistent with the ABA Rules, we recommend addressing conflict of interest questions with regard to former judges, law clerks, and third-party neutrals in Rule 1.12 instead of in Rule 1.11.

Rule 1.13—Organization as Client. The Rules Review Committee recommended adoption of the recent amendment to the ABA Model Rules that requires lawyers for organizations to report certain violations to higher authorities in the organization than the lawyer’s normal contacts, unless the lawyer reasonably believes that it is not in the best interests of the organization to do so. This would move guidance on the point from a D.C. Comment to the text of the Rule. As does the revised ABA Rule, this change would create a presumption that the lawyer should “report up” in certain circumstances. While conforming to the ABA on this “reporting up” amendment, the Committee declined to recommend the “reporting out” provisions of Rule 1.13 that the ABA adopted in August 2003. The Committee believed that its recommended permissive disclosure option in Rule 1.6, when a lawyer’s services have been used to further a crime or fraud, would provide a sufficient option to “report out” conduct that could injure third parties or the organization. Consistent with the District of Columbia’s long-standing policy in favor of expansive protection of client confidences, the Committee declined to recommend a broader “reporting out” option applicable only to organizational clients, whose confidences should be protected to the same degree as those of individual clients.

Rule 1.14—Client Under a Disability. We recommend adopting ABA changes to the Model Rule, including a new title. These changes recognize that clients’ capacity to participate in decisions about their legal representation fall along a continuum of capacity, and that clients do not fall into only two groups—those able to have “normal” relationships and those “under a disability.” The Committee recommended a few modifications to the ABA text, particularly to caution lawyers that surrogate decision-making options other than formal guardianships or conservatorships may best serve clients with diminished capacity, and that a lawyer should advocate the least restrictive form of intervention in the client’s decision-making.

Rule 3.3—Candor to Tribunal. The D.C. Rule gave more protection to client secrets and confidences than the corresponding Model Rule, even before the Ethics 2000 changes widened the gap by expanding lawyers’ duty to disclose client confidences and secrets in order to rectify a fraud on the tribunal. We recommend retaining the basic D.C. approach, but with some modifications. For example, consistent with the recommendations on Rule 1.6, the Board recommends that there be an exception to the general rule prohibiting disclosure of information protected by Rule 1.6 when a client has used or is using the lawyer’s services to further a crime or fraud.

Rule 3.4—Fairness to Opposing Parties. We recommend adoption of a new subsection prohibiting all lawyers from making peremptory strikes of jurors for any reason prohibited by law. The current prohibition against discriminatory exercise of peremptory challenges in Rule 3.8 applies only to prosecutors.

Rule 4.4—Respect for Rights of Third Parties. We propose to incorporate into Rule 4.4 the approach taken in D.C. Bar Legal Ethics Committee Opinion 256 to the frequently recurring problem of inadvertent production of privileged documents. ABA Model Rule 4.4 requires the receiving lawyer only to notify the sender in order to permit the sender to take protective measures. By contrast, the Bar’s proposal requires the receiving lawyer to return the documents to the sending party in this circumstance, and also prohibits the receiving lawyer from reading or using the material if the lawyer has not done so before realizing that it was transmitted in error.

Rule 6.5—Nonprofit and Court-Annexed Limited Legal Services Programs. Consistent with the recommendation of the D.C. Bar Pro Bono Committee, we recommend adoption of ABA Model Rule 6.5, which is a new addition to the Model Rules. This Rule facilitates the provision of pro bono legal services by limiting the imputation of unknown conflicts of interest in circumstances where it would be impractical to perform a normal conflicts check. This change makes it possible for attorneys to provide services they otherwise might believe to be precluded by the inability to perform conflicts checks within their firms or organizations.

Rule 7.1—Communications Concerning Lawyer’s Services. We are recommending two sets of changes to Rule 7.1. First, we recommend the repeal of the District’s unique option that permits lawyers to pay third parties for referrals. We are persuaded by the Rules Review Committee’s research that there has been significant harassment of accident victims by “runners” paid by lawyers to obtain new clients. The Committee also recommended a redefinition of abusive solicitation to include “coercion, duress, or harassment” rather than “undue influence,” the term in the current Rule.

Rule 8.4—Misconduct. We recommend the addition of a new Comment, adapted from an ABA Comment, stating that manifestations of bias based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status violate Rule 8.4(d) when their offensive, abusive, or harassing nature seriously interferes with the administration of justice.

Rule 8.5—Disciplinary Authority; Choice of Law. We recommend retention of the choice of law provision in current D.C. Rule 8.5(b). The current D.C. Rule is identical to the former version of the ABA Model Rule. Based on the Ethics 2000 review, the Model Rule now requires disciplinary authorities to apply the rules of the jurisdiction where conduct not connected with matters before tribunals occurred or, if different, the rules of the jurisdiction where the predominant effect of the conduct occurred, regardless of whether the lawyer was admitted to practice in that jurisdiction. In contrast, the D.C. Rule, like the former version of the Model Rule, requires application of the rules of a jurisdiction in which the lawyer is licensed to practice. We concur with the Committee’s conclusion that the new Model Rule would subject lawyers to substantial and unreasonable burden and uncertainty in determining where the predominant effect of their conduct occurred and whether the applicable rules are different from the more familiar rules of the jurisdictions where they are admitted.

Other Rules. We are proposing five new Rules based on their counterparts in the Model Rules. These five Rules are: Rule 1.17 on sale of a law practice; Rule 1.18 on duties to prospective clients; Rule 2.4 about lawyers serving as third-party neutrals; Rule 5.7 governing the provision of law-related services such as title insurance and accounting; and Rule 6.5 on nonprofit and court-annexed limited legal services programs. Consistent with the ABA’s February 2002 amendments, and the recommendation to address the topic in a new Comment to Rule 1.7, we propose that Rule 2.2 on intermediaries be deleted.

Terminology—We propose several conforming amendments to the ABA Model Rules in the terminology section of the D.C. Rules, including definitions of “informed consent” and “writing,” as well as corresponding changes in several Rules.

Legal ethics counsel Lisa Y. Weatherspoon and Ernest T. Lindberg are available for telephone inquiries at 202-737-4700, ext. 231 or 232, or by e-mail at ethics@dcbar.org.