Guide to New Rules of Ethics
By Daniel Joseph and Heather Bupp-Habuda

In issuing its August 1, 2006, order promulgating revisions to the D.C. Rules of Professional Conduct, the District of Columbia Court of Appeals made a number of significant changes that warrant every Bar member’s attention.

Lawyers become familiar with the rules when they begin practice—and must do so again with this revision, which took effect on February 1. D.C. Bar members should consider their responsibility to promptly review the amended rules as mandatory, although the Bar has no authority to impose it.

This task need not be daunting, however. Perhaps the best way to review the changes is to page through the marked-up version of the previous rules and compare it with the newer version of the amended rules. Both versions are available on the Bar’s Web site at www.dcbar.org/newrules. For the most part, the outline and the substance of the rules have been retained.

We do not have enough space here to cover all of the noteworthy changes. Some topics that have been omitted may still be worthy of attention. For example, amended Rule 5.4(a) adds a new provision allowing the sharing of legal fees with bona fide nonprofit organizations that employed, retained, or recommended employment of the lawyer in the matter. Consequently, we have attempted to focus this article on the most salient changes that are likely to be encountered by D.C. Bar members.

Four of these changes—Rules 1.6, 1.7, 1.13, and 7.1—were the high-profile issues that garnered the most time, discussion, and media or blog attention throughout the drafting process. Although by no means the only important changes, these rules, along with Rules 1.5, 1.8, 1.9, 1.10, 2.2, 3.3, 4.1, 4.4, 5.1, 5.7, and 8.5, will be covered below.

In addition, several rules have special applicability to different types of practice, such as sole and small-firm practitioners, government lawyers, criminal law practitioners, large-firm practitioners, and lawyers providing pro bono assistance. The amended rules should also be reviewed with an eye toward those practicing in these specific groups.[1]

Background
The revisions to the D.C. Rules began with the D.C. Bar Rules of Professional Conduct Review Committee[2] study of the recent changes to the American Bar Association (ABA) Model Rules of Professional Conduct. Those changes were based on a report of the ABA Ethics 2000 Commission. The committee also considered the report of the ABA Task Force on Corporate Responsibility. In January 2005 the committee proposed amendments to the D.C. Rules, which in turn were approved by the Bar’s Board of Governors and recommended to the D.C. Court of Appeals in June 2005.

Overall, the amended D.C. Rules are closer to the ABA Model Rules than are the current D.C. Rules. The Rules Review Committee preserved most D.C. policy differences, however. The amended rules remain unique, as compared to the adoption by other jurisdictions of the ABA Model Rules. The amended rules include five new rules. They are Rule 2.4, on lawyers serving as third-party neutrals; Rule 1.18, on prospective clients (the substance of this rule should already be familiar, as it is a collection of parts of other existing rules); Rule 1.17, on the sale of a law practice;[3] Rule 5.7, on responsibilities regarding law-related services; and Rule 6.5, on nonprofit and court-annexed limited legal services programs.

The “Terminology” section is now numbered as Rule 1.0. Two ABA model rule terms, screened and writing, which previously had no counterpart in the D.C. Rules, have been adopted. The definition of screened is consistent with the discussion of screening in D.C. Bar Legal Ethics Opinions 227 (1992) and 279 (1998), and three comments help elucidate its treatment. The definition of writing includes electronic and tangible records and explains what constitutes a “signed” writing.[4]

The new changes confirm an important and, we think, helpful point about the format of the D.C. Rules. Both the rules and particularly the comments tend to be longer in text than their equivalents in the ABA Model Rules (although the ABA is catching up). The longer text is clearly aimed at helping readers understand the rules, their rationales, and their application in common circumstances.[5] A quick comparison of the text and comments to Rule 1.7, the general rule on conflicts of interest, shows this characteristic dramatically.

In essence, the court and the Bar have made the D.C. Rules of Professional Conduct user-friendly, perhaps more so than the ethics rules of other jurisdictions. A very useful addition to the amended comments is the insertion of several cross-references between rules whose applications readily intersect.[6] Lawyers consulting the amended comments should expect an enlightening experience.

Confidentiality, Disclosure, and Noisy Withdrawal
The amendments to Rule 1.6 are arguably the most important for the practitioner to know, understand, and be able to apply to a specific scenario.

Amended Rule 1.6 adds two new bases for permissive disclosure of client confidences and secrets. One of the new provisions, subsection (e)(6), allows a lawyer to disclose client confidences or secrets for the purpose of seeking or obtaining guidance from another lawyer about compliance with the law and/or the D.C. Rules.

This is a welcome addition to Rule 1.6. For many years lawyers have been reaching out to the D.C. Bar Legal Ethics Committee and ethics counsel for informal and formal guidance on legal ethics. With this addition, lawyers may be more comfortable with presenting specifics and may well receive more cogent guidance as a result.[7]

New subsection (d) to Rule 1.6 provides that when the client has used or is using the lawyer’s services to further a crime or fraud, the lawyer may[8] disclose client confidences or secrets for two reasons: to prevent a crime or fraud reasonably certain to cause substantial injury to property or financial interests of another; or to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that has resulted or is reasonably certain to happen. Forty-one other jurisdictions have exceptions permitting disclosure of confidences or secrets in similar circumstances. Comment 17 to Rule 1.6 cites a D.C. Court of Appeals opinion, In re Public Defender Service,[9] illustrating the parallel between the existing D.C. law’s crime-fraud exception to the attorney–client privilege, which exempts client–lawyer communications from the privilege if they are in furtherance of a crime or fraud, and amended Rule 1.6(d), which says such information also is not ethically protected if it meets the economic injury standard within the disclosure exception.

The permissive Rule 1.6 economic injury exception may trigger mandatory disclosure requirements through other rules, specifically Rules 3.3 (candor to tribunal) and 4.1 (truthfulness in statements to others). This same exception may also trigger additional permissive economic injury exceptions through Rules 3.4(a), 8.1, and 8.3(c), comment 2. The complexity of the changes to Rule 1.6 emerges as one studies their relationships to mandatory disclosure triggers found elsewhere in the rules. Previously, the D.C. Rules had no such mandatory trigger insofar as economic injury is concerned.

Rules 3.3(a)(1) and 3.3(d) specify situations that require correction of false statements made to a tribunal to the degree that is permissible under Rule 1.6.[10] Rule 1.6(d) uses may and conveys permissiveness, but information that can be disclosed under the terms of Rule 1.6(d) must be disclosed if it falls within the mandate of Rule 3.3(a)(1) or (d) regarding corrections of false statements to a tribunal. Rule 3.3(d) acknowledges that less drastic action may suffice as a reasonable remedial measure in some circumstances. But if less drastic actions are insufficient to remedy the false statement, information that may be disclosed under Rule 1.6(d) must be disclosed to satisfy Rule 3.3(d).

In changes to Rule 3.3(a)(1) generally, the prohibition on making a false statement of “material fact” has been eliminated as to the material qualification. Lack of materiality will not excuse a knowingly false statement to a tribunal.[11] Pursuant to Rule 3.3(a)(4), a lawyer is permitted to refuse to offer evidence (other than testimony of a criminal defendant) that the lawyer believes is false.[12]

Although the only changes to Rule 4.1 are to its three comments, they are considerable. The application of Rule 4.1 is similar to the mandatory disclosure exception discussed above with respect to Rules 1.6 and 3.3. Comment 3 makes clear that Rule 4.1(1)(b) is a specific application of the Rule 1.2(e) directive not to assist client fraud or crime. Given the new Rule 1.6(d) exception, Rule 1.6 provides no shield to disclosure when standing silent would constitute assistance to a client’s crime or fraud.[13]

Comment 3 provides that ordinarily a lawyer can avoid assisting a crime or fraud by withdrawing from the representation. At times, however, a “noisy” withdrawal of “an opinion, document, affirmation or the like” may be necessary to avoid assisting in the client crime or fraud.[14] “In extreme cases” a lawyer will be required to disclose confidential client information (to the degree permitted by Rule 1.6(d)) if otherwise the lawyer’s silence would assist the client’s crime or fraud in violation of Rule 4.1. Simply put, if the lawyer has discretion to disclose a client confidence or secret under Rule 1.6(c), (d), or (e), that is, the disclosure is not prohibited by Rule 1.6, and simple or noisy withdrawal is not sufficient to avoid participation in a client’s crime or fraud, the lawyer must disclose (i.e., if nondisclosure would place the lawyer in the position of having assisted in the client’s criminal or fraudulent act).

Determining whether or when to disclose client confidences or secrets has always required extreme care. Arguably, such dilemmas have only increased with the recent amendments. For instance, noisy withdrawals can be quite risky for any lawyer. Attorneys facing such questions are encouraged to seek legal ethics counsel from a trusted source.

Informed Consent
In the updated terminology of the D.C. Rules, the change from “consent” to “informed consent” in Rule 1.0(e) may be significant. “Informed consent” has replaced “consent” in Rules 1.2, 1.5, 1.6, 1.7, and 1.8. The Rules Review Committee has explained that the adoption of this term, as used in the ABA Model Rules, is intended to achieve consistency and not to effect a substantive change in the D.C. Rules.[15] As a result, a lawyer may safely assume that the standard of care required for consent in the original rules is the same as that for informed consent in the amended rules.

Some practitioners, however, have espoused the belief that a more logical or natural reading of “informed consent” conveys a higher standard of consent that can only be met by specifically complying with comments 2 and 3 to Rule 1.0(e): namely, that consent be “an affirmative response by the client or other person” and not assumed “from a client’s or other person’s silence.”[16]

Only time will tell how this standard will be interpreted, but the premise of a higher standard is not difficult to see. Of course, the burden of proof in proving informed consent will be on the lawyer.

Fees
Amended Rule 1.5(b) and comment 1 require that the initial writing to a client whom the lawyer has not regularly represented must contain a description of “the scope of the lawyer’s representation, and the expenses for which the client will be responsible,” as well as the already required information about the basis of the fee.

Contingent fee arrangements must also include information on whether the client is liable for expenses regardless of the outcome. This is helpful to lawyer and client, who both benefit from an explicit understanding of what the lawyer has agreed to do and when that is completed.

Although this rule technically applies only in situations where the lawyer has not regularly represented the client (or where the fee arrangement changes), it is always highly beneficial at the outset of a matter for the lawyer to provide a writing to the client that describes their understanding of what the lawyer has agreed to undertake for the client. Comment 4 to amended Rule 1.2 includes a cross-reference to Rule 1.5(b) for further guidance.

Conflicts of Interest
New Rule 1.7(c)(2), along with comment 30, makes clear what was previously implicit in the D.C. Rules (though explicit in the ABA Model Rules), that to undertake a representation despite a conflict of interest a lawyer must not only obtain the informed consent of the client or clients affected, but be reasonably able to provide competent and diligent representation to each affected client in the circumstances. The presence of the word reasonably makes this an objective test.

Thus, suppose a lawyer is asked to bring a lawsuit challenging the legality of activities by the management of a company in whose stock the lawyer has a significant investment. Success in the representation would negatively affect the value of this investment and hence the lawyer’s plans for retirement or for paying for college education for the lawyer’s children. In such circumstances this rule change underscores that the lawyer should probably not accept the representation, even if the client consented.

Consent to a Conflict
Amended Rule 1.7 does not change the District of Columbia’s doctrine that a client’s consent to a conflict of interest is valid even if not given or confirmed in writing. Of course, any oral agreements on an important matter like a conflict waiver are subject to varying and imperfect recollection.

This is a problem with which all lawyers must be prepared to deal. In 2002 the ABA amended Model Rule 1.7, continuing to allow consent to be oral, but requiring that oral consent be promptly confirmed in writing. Although that confirming writing may be unilateral, from the lawyer to the client, if it represents the client’s agreement inaccurately, the client may quickly respond and the situation may be reexamined and appropriately dealt with.

At least one other jurisdiction—California—has taken a different route, requiring that a conflict consent be in a bilateral writing that describes the considerations discussed with the client that bear on whether the conflict could be consented to.

The text of amended Rule 1.7(c) was not changed in relevant part. As before, it does not require a writing either to express consent or to confirm a previous oral consent. Amended comment 28 (renumbered from the former comment 20), however, is reorganized to state more prominently (but with unchanged substance) that it is “ordinarily prudent” to explain to a client in writing the factors that may cause or influence a conflict and to obtain a written waiver back from the client. Nonetheless, the comment reminds attorneys that “the Rule does not require that disclosure be in writing or in any other particular form in all cases.”

Finally, comment 28 continues to point out that the extent of disclosure that is satisfactory for “sophisticated business clients” may be less than required for others. At least for sophisticated clients—especially large organizations with their own in-house counsel where many kinds of conflicts are more or less routinely consented to—the model rule’s mechanism of an oral waiver confirmed by a prompt unilateral writing is a fair, useful, informative, and unobtrusive tool. It is not clear whether the District’s failure to adopt the ABA model rule constitutes a rejection of its waiver mechanism or whether use of a unilateral writing to confirm an oral waiver, at least for a sophisticated client, is a suitable alternative for the “prudent” lawyer to create a written record. This lack of clarity emphasizes the burden on the lawyer to exercise careful judgment in this area.

The ABA and other jurisdictions have created a special rule (Model Rule 1.8(j)) prohibiting sexual relations between a lawyer and the lawyer’s client. The District of Columbia has refrained from altering the text of the rules to bar sexual relations between lawyer and client, but has covered the subject in new comments 37 to 39 to Rule 1.7.

The District’s approach has distinct advantages. The placement of this substance in a comment to Rule 1.7 reminds lawyers that engaging in sexual relations with a client is one of many kinds of conflicts of interest, and that, as comment 37 states, other kinds of intimate or close personal relationships between client and lawyer also might cause the lawyer to become unable to provide independent advice.

Rule 1.9 bars a lawyer from representing a current client adversely to a former client where the lawyer’s former representation was “substantially related” to the present one. The rule incorporates the test articulated by Judge Edward Weinfeld in what is one of the best judicial decisions ever written about legal ethics, T. C. Theatre Corp. v. Warner Bros. Pictures, Inc.[17]

The purpose of the “substantially related” test is to identify situations where the former client was likely to have confided information to the lawyer that would now be of use to the lawyer in a matter adverse to the former client—without actually inquiring into what the communications were between lawyer and client. Despite the clarity of the concept, there has been a perennial difficulty in determining how to apply this test in particular circumstances.

The District of Columbia has adopted, as comment 3 to Rule 1.9, a useful ABA comment addressing this problem. Comment 3 notes that matters are substantially related if they involve the same subject matter or if it is objectively likely that information was confided by the former client that “would materially advance” the current client’s matter against the former one. Useful examples are provided. The comment also helpfully and logically limits the scope of the rule by excluding situations where its rationale would not apply and does not trigger disqualification (i.e., where information may have been earlier confided to the lawyer but has since become either public or obsolete by the passage of time).

Another well-known problem in application of Rule 1.9 concerns lawyers who by virtue of a former representation have become generally familiar with how a client handles a type of problem and then seek to represent a client adverse to the former client in the same type of matter. For example, a lawyer may participate in the defense of claims of employment discrimination for an employer and then, after ceasing to represent the employer, seek to represent a plaintiff asserting such a claim against that employer. The reported cases determining when such familiarity is sufficient to render the new representation “substantially related” to the former are well known for their failure to be entirely consistent.

New comment 3 contains a single, but helpful, sentence discussing this issue. The comment distinguishes between “general knowledge of the [former] client’s policies and practices” as not disqualifying and “knowledge of specific facts gained in a prior representation that are relevant to the [current] matter” as disqualifying. Of course, the distinction between “policies and practices” and “specific facts” will not always be easy to draw, but the comment should materially aid lawyers in application of Rule 1.9.

Imputation of Conflicts
The major headache in law firms and other group legal practices is the application of Rule 1.10, which imputes the disqualification of any lawyer in a firm to every lawyer in that firm regardless of location, practice area, or familiarity (or even awareness) of the client.

For example, suppose that lawyer A, in a firm’s Los Angeles office, seeks to represent a buyer in a real estate transaction in which the seller, company X, is represented by lawyer B, in the firm’s D.C. office, on a trademark issue unrelated to real estate. Because lawyer B could not personally represent a client adverse to company X, Rule 1.10(a) prohibits any lawyer in B’s firm, including A, from representing the buyer who would be adverse to X, even though lawyers A and B work independently of each other and may not even know each other.

Indeed, in any sizable multilawyer firm, such conflicts are sought and detected by computer searches because it is unlikely that any person in the firm knows enough to find these issues. Every sizable firm has experienced situations where, because of foul-ups of one kind or another, conflicts have existed without any involved client or lawyer even being aware of them. The recent changes in Rule 1.10 very rationally cut back its scope in instances in which there is little chance of any injury to a client’s interest.

Rule 1.10(a) no longer imputes to an entire firm a lawyer’s conflict that is based on personal, as opposed to professional, interests of the lawyer. In the example above, if lawyer B did not represent company X, but his sister was company X’s chief financial officer, lawyer B would probably have such a personal interest in his sibling’s success, and thus such a personal interest in company X, that it would create a conflict for lawyer B.[18] Under the former version of Rule 1.10, this relational conflict would bar lawyer A or any other lawyer in the firm from representing a client adverse to company X. The amended rule does not, however, impute lawyer B’s disqualification, which is based on issues personal to lawyer B, to other lawyers in B’s firm.[19]

Another amendment to Rule 1.10 is found in subsection (c). This change brings the District into line with the ABA Model Rules, and with the ethics rules of most other jurisdictions. It concerns situations in which a former representation of a client within a firm was conducted by lawyers who have all since left the firm, such that no remaining lawyer possesses any confidential information concerning that former client.

A situation like this typically arises when a lawyer or group of lawyers depart one firm to practice at a different firm, taking clients with them. Under the ABA Model Rules, if all lawyers in a firm who represented a former client have departed such that no remaining lawyer has confidential information concerning that client, then lawyers in the firm may become adverse to the former client even on matters related to those that the now-departed lawyers handled while in the firm.

In other words, if A and B are the only lawyers in a firm who represent client X, but A and B leave the firm to go to another and client X goes with them, then for this purpose the rules do not regard X as a former client of the firm. The rationale is that because no one remaining in the firm has any confidential information about client X, there is no risk that the firm can take improper advantage of such information in a subsequent matter adverse to that client.

The District of Columbia resisted this change when it adopted its version of the Rules of Professional Conduct in 1991, but has now come around to the majority view. (Note, however, that the rule leaves unanswered the situation in which all lawyers who actually know any confidential information about a client have left a firm but the firm still possesses client files, say, in dead storage, which no one has looked at since the lawyers in question left.)[20]

In a drafting change particularly significant in the District, the amended rules make clear that where representation is explicitly permitted under Rule 1.11 (providing that a firm is not disqualified if a former government employee at the firm is disqualified but is also appropriately screened by the firm) or Rule 1.12 (a similar provision for former arbitrators or other third-party neutrals), Rule 1.10(a) does not apply to bar that representation.

From time to time it had been argued that Rules 1.9 and 1.11 were additive, so that where a former government employee works for a firm, the firm would have to satisfy not only Rule 1.11 (which allows other lawyers, where appropriately screened, to represent a client that the former government employee would be personally barred from representing), but also the combination of Rules 1.9 and 1.10(a), which have no provision for screening. Such an argument would effectively undo the special provisions of Rules 1.11, which were designed to allow former government officials, who may have had responsibility on a large number of matters while at the government, to join a firm without broadly disqualifying that firm.

Organization as Client
Rule 1.13, on the critical topic of a lawyer’s representation of an organization, is expanded and altered, clearly in response to Enron, other corporate scandals, and the passage of the Sarbanes-Oxley Act. This article is too brief a compass in which to discuss all implications of the Rule 1.13 changes. One major change should be noted, however.

Under the former comment 4, where a lawyer “knew” that the client organization might be materially injured by tortious or criminal acts of an officer, employee, or director, the lawyer was required to ask the erring officer or employee to reconsider his or her actions, and failing that, if the lawyer deemed it “reasonably necessary,” to “take steps to have the matter reviewed” at a higher level within the organization (to “report up,” in common parlance). In appropriately serious cases, the reporting up might go as far as the top executive or the board of directors.

As revised, former comment 4 has been altered and elevated to rule text in a new subsection (b). This provision not only broadens the types of situations in which the lawyer might be called upon to report up, but also appears to make reporting up the preferred, rather than the exceptional, step.

Amended Rule 1.13(b) now provides that where the lawyer “knows that an officer, employee, or other person associated with the organization” acts or refuses to act (in a matter “related to” the lawyer’s representation) in a way that “is a violation of a legal obligation, or a violation of law” that might be imputed to the organization, the lawyer “shall” refer the matter to a higher level within the organization, unless the lawyer “reasonably believes” that that is unnecessary. The new comment 4 states that the lawyer “may” ask the officer or employee to reconsider, but where that is ineffective, “it will be necessary” for the lawyer to report up.

In a highly unusual step, new comment 6 states explicitly that the District rejects ABA Model Rule 1.13, which permits a lawyer to “report out” to an outside authority if the organization persists in its course after the lawyer has reported up within the organization. The rationale for this rejection is the preservation of confidences and secrets under Rule 1.6.

The comment also states that if a “binding judicial determination” concludes that federal law “preempt[s]” the impact of the D.C. rule and compels reporting out, then the lawyer may follow that determination. Accordingly, in the future there may well be difficult choice-of-law issues presented concerning the new Rule 1.13, as is true with many other rules.[21]

Lawyer as Intermediary
The amendments do away with the former Rule 2.2, which outlined circumstances in which a lawyer could serve as an intermediary between clients.

Comment 1 to the former Rule 2.2 made it clear that a lawyer could act as such an intermediary even if the clients had “potentially conflicting interests.” What was not clear was whether Rule 2.2 described an exception to the general rule forbidding conflicts of interest, Rule 1.7, or merely described a special case under Rule 1.7. Rule 2.2 was thus of difficult application and became something of a dead letter.

The entire rule has now been replaced by a new comment 17 to Rule 1.7. This makes it clear that the replacement comment describes a situation under Rule 1.7 (as opposed to an exception to it), and helpfully clarifies that acting as an intermediary will not lead a lawyer into a violation of Rule 1.7.

Comment 17 makes it clear that it is possible for a lawyer to “establish or adjust a relationship between clients,” but that this may be done only if the clients understand “that the lawyer’s role is not that of partisanship normally expected in other circumstances,” and that accordingly the clients may have more decision-making responsibility than in other situations. The comment closes by pointing out that such limitations and conditions should be explained to the involved clients at the outset of the representation. In this way new comment 17 makes clear that the critical juncture is the outset of the matter, when the clients’ desires are made known to the lawyer and the lawyer should be able to assure that the clients understand what service the lawyer will provide, including limitations on that service.

In short, if two clients get together and say to a lawyer, “We want you to help us adjust our differences. We don’t want you to advocate for either of us, but to help us analyze our problems and to reach an accommodation,” it is not a violation of Rule 1.7 for the lawyer to accept such a representation, as long as the lawyer can assure that the clients understand what the lawyer will and will not be doing for them.

Respect for Rights of Third Persons
Rule 4.4 now codifies D.C. Bar Legal Ethics Opinion 256 (1995) (inadvertent disclosure of privileged material to opposing counsel).[22] The added subsection (b) makes it clear that to trigger the requirement of notifying the sender, the inadvertency of the sending and the confidential nature of the document must be known before the document is read. ABA Model Rule 4.4 was originally consistent with D.C. Rule 4.4 and our legal ethics opinion, but the ABA’s position has changed. Such differences may raise very significant choice-of-law issues because of the number of jurisdictions that have adopted ABA Model Rule 4.4.[23]

With the advent of metadata and mandatory electronic discovery, the topics addressed in amended Rule 4.4 are expanding, and will likely continue to expand for the foreseeable future, as is evident by the recent changes to the Federal Rules of Civil Procedure. A limited number of jurisdictions and the ABA currently have legal ethics opinions advising practitioners about their obligations with respect to inadvertent disclosure and metadata.[24] Similarly, the case law in the area of inadvertent disclosure and metadata continues to develop along with the technology.[25]

Managerial Responsibilities
Rule 5.1 has been amended to require lawyers with managerial authority in a law firm or government agency to ensure that all lawyers in the firm or agency comply with the rules.

This is an important provision because it makes the firm managers responsible for the education of the firm’s lawyers in the rules. Under the former rule, that educational responsibility arguably had to be pinned to a particular lawyer, as opposed to a firm’s management in general, to trigger a violation of the rules. Now “managing and supervisory” lawyers clearly have the responsibility, and presumably cannot evade the responsibility by saying that others in the firm have it.

The same is true of nonlawyer assistants in the amended Rule 5.3. As such, every manager or supervising lawyer reading this article should make sure that those working under them acquire the appropriate information about the amended D.C. Rules.

Law-Related Services
New Rule 5.7 provides some guidance in a very murky area, concerning tasks that lawyers do as part of the practice of law, but that can clearly be done by nonlawyers, such as lobbying. Such activities are called “law-related services,” and the new provision states that a lawyer providing such services is subject to the rules in the performance of those services (unless the lawyer advises the client that they are not legal services).[26] By implication, at least, this means a lawyer can validly provide those services as part of legal practice even if standing alone they do not constitute the practice of law.

Even though the new rule is a good start at providing guidance in this area, there are some important issues that it does not tackle. For example, the rule is silent as to whether a law firm that “has as its sole purpose providing legal services to clients” within the meaning of Rule 5.4(b)(1) (allowing lawyers to practice in a firm in which nonlawyers hold financial interests or exercise managerial authority as long as the nonlawyers assist the firm in practicing law and the sole purpose of the firm is “providing legal services to clients”) loses that status if it provides law-related services within the meaning of Rule 5.7.

Communications About Lawyer’s Services
The changes to Rule 7.1 are one of the high-profile issues in the amended D.C. Rules.

The District has traditionally allowed much more leeway to lawyers than any other jurisdiction in the payment of fees for soliciting clients. The amended Rule 7.1(b)(2) closes this gap substantially. The new provision prohibits a lawyer from paying anyone other than employees or partners for soliciting clients through in-person contact on the lawyer’s behalf. This change has, in effect, put independent “runners” out of business in the District of Columbia.

It is worth noting that in July 2006, even before the court acted to adopt the amended D.C. Rules, the Council of the District of Columbia amended its Theft and White Collar Crimes Act of 1982.[27] That act made it unlawful for a lawyer, whether directly or through a paid intermediary, to solicit a client within 21 days of a motor vehicle accident. A practitioner can certainly comply with the new restrictions in both the amended rule and the act. It is unusual, nonetheless, for the D.C. Council to move to regulate lawyers’ legal ethics. The act penalizes some conduct that is also a violation of the D.C. Rules.

Choice of Law
There is no more important area in ethics today than choice-of-law issues, given that it has become increasingly common for lawyers to travel to different jurisdictions to visit clients, negotiate matters, interview witnesses, attend court or other tribunal,[28] and so forth. This is particularly true of lawyers who are members of the D.C. Bar, because most are licensed in at least one other jurisdiction.[29]

Amended Rule 8.5 is essentially unchanged. In pertinent part, it provides that a lawyer’s conduct is governed by the ethics rules of the jurisdiction in which that conduct occurs, unless the “particular conduct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice,” in which case the rules of that jurisdiction would govern.[30]

There are two minor but significant changes in subsection (b) and comments 4 and 6: the rules that would be applied by a “tribunal” apply to a lawyer practicing before it, even if the tribunal is not a court; and Rule 8.5 now explicitly applies to “transnational practice” unless international law or treaties dictate otherwise.[31]

The District of Columbia has not followed the recent substantive changes to ABA Model Rule 8.5. That rule provides that a lawyer is subject to disciplinary authority in any jurisdiction in which the lawyer “provides or offers to provide any legal services,” whether or not the lawyer is admitted to the bar in that jurisdiction. Although a D.C. lawyer may be subject to discipline in a number of jurisdictions, the D.C. Rules do not envision that such discipline can reach lawyers not admitted to practice in the District of Columbia.

The model rule appears to be of difficult application, because of the lack of guidance of what “predominant effect” means and of the difficulty in knowing where some conduct occurred. (A lawyer’s advice may have varying effects, in varying places, depending on its substance. Does this mean that the choice of applicable ethics rule may depend on the substance of advice that has been or is expected to be given?) Much of what a lawyer may do on a particular matter is performed in multiple places: the lawyer’s office, visits to the client, in transit, in breaks while traveling to see other clients, on vacation, and so on.

Notes
[1] The D.C. Bar offered complimentary continuing legal education (CLE) classes to Bar members on the amended D.C. Rules in October 2006. It plans to offer online streaming video of these classes in the near future at www.dcbar.org/cle and www.dcbar.org/newrules.
[2] The chair of the Rules Review Committee is Mary Lou Soller and the vice chair is Eric Hirschhorn. The immediate former chair is Leah Wortham.
[3] Prior to February 1, Rule 1.17 pertained to trust account overdraft notification, which is now addressed in amended Rule 1.19.
[4] The amended Rule 1.0(o) definition of “signed” writing is modeled on the Uniform Electronic Transactions Act § 7 (1999). See District of Columbia Bar Rules of Professional Conduct Review Committee, Proposed Amendments to the District of Columbia Rules of Professional Conduct: Final Report and Recommendations at 13 (rev. Oct. 6, 2005), available online.
[5] The text of comments to the D.C. Rules, as the rules themselves, are adopted by the court. Though accorded less weight than the rules, the comments are often crucial to the proper interpretation of a rule.
[6] For instance, the nine comments to Rule 1.2 refer to interrelationships with Rules 1.1, 1.5, 1.14, 1.16, and 4.1.
[7] Practitioners are encouraged to seek guidance in interpretation and application of amended Rule 1.6.
[8] The terms may and shall in the D.C. Rules denote discretion to act and no discretion to act, respectively.
[9] 831 A.2d 890 (D.C. 2003).
[10] Comment 12 to Rule 3.3 addresses the practical time limit on the obligation to take reasonable remedial measures concerning criminal and fraudulent conduct related to the proceeding.
[11] Under new Rule 1.0(n), the term tribunal has been expanded, which has the effect of expanding the potential application of Rule 3.3.
[12] See Rule 3.3 cmts. 6, 7.
[13] Comment 1 notes that misleading statements or omissions may constitute false statements, and explains that a lawyer may be required to disclose a confidence or secret to avoid assisting a client in the commission of a crime or fraud.
[14] Rule 4.1 cmt. 3.
[15] See supra note 4.
[16] Rule 1.0 cmt. 3.
[17] 113 F. Supp. 265 (S.D.N.Y. 1953).
[18] See Rule 1.7(b)(4).
[19] But what if the lawyer in B’s firm who was considering taking on a matter adverse to company X was lawyer C (not A), who practices in the firm’s D.C. office with lawyer B, has known lawyer B for decades, is lawyer B’s personal friend, and knows his sister, the chief financial officer of company X? If that situation would objectively create doubt whether lawyer C can effectively represent a client adverse to company X, then as a result of these personal interests lawyer C would be directly disqualified from such a representation, without any need for imputation of lawyer B’s conflict.
[20] One of the authors got his introduction to serious questions of professional ethics by having placed in front of him a sealed box of the files of a former firm client that had been represented by a since-departed partner, who continued to represent that client at his new firm. The author was trying to figure out whether to open the box and inspect the contents. Luckily for him, after several fruitless hours a consent was obtained that mooted the issue.
[21] See Rule 8.5.
[22] A subsequent opinion, D.C. Bar Legal Ethics Opinion 318 (2002) (disclosure of privileged material by third party), further elaborates on this theme. D.C. Bar legal ethics opinions are cited throughout the comments to the amended rules. Opinions 210 through 336 can be obtained online at www.dcbar.org/ethics or through the D.C. Bar’s Rules Subscription Service by calling 202-747-4700, ext. 268.
[23] See Rule 8.5.
[24] ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 442 (2006); Maryland State Bar Op. 2007-09 (2006); Florida Bar Op. 06-2 (2006); New York State Bar Op. 782 (2004).
[25] Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005); Williams v. Sprint/United Management, 230 F.R.D. 640 (D. Kan. 2005).
[26] See Rule 5.7 cmt. 3.
[27] White Collar Insurance Fraud Amendment Act of 2006, D.C. Code § 22-3225.07 (Supp. 2006). A lawyer’s violation of this prohibition is subject to a $1,000 civil penalty.
[28] Amended Rule 1.0(n) includes a broadened definition of tribunal.
[29] Because the D.C. Bar had a special committee on multijurisdictional practice that dealt with these issues, the Rules Review Committee did not address some potential changes to Rule 8.5(a).
[30] Rule 8.5(b)(2). This provision is consistent with the provision in the ABA Model Rules, which has been adopted by a number of states.
[31] This transnational practice issue is closely related to that of the unauthorized practice of law, with a number of jurisdictions having asserted the power to regulate the conduct of lawyers who are even temporarily within their borders. This entire area is subject to traps and pitfalls, and is certain to receive further attention in the future.

Daniel Joseph is a partner at Akin Gump Strauss Hauer & Feld LLP. Heather Bupp-Habuda is legal ethics counsel for the D.C. Bar.