By Heather Bupp-Habuda
In Rule 5.7 of the new D.C. Rules of Professional Conduct, law-related services denotes services that are substantively related to the provision of legal services and that might reasonably be conjoined, but are not actually legal services. Rule 5.7(b).
Law-related services by lawyers present the possibility that the person for whom the law-related services are performed would fail to understand that the services may not carry with them the protections normally afforded a client–lawyer relationship. Rule 5.7 cmt. 1. The recipient of the law-related services may expect, for example, that the protection of client confidences and secrets, prohibitions against representation of persons with conflicting interests, and obligations of a lawyer to maintain professional independence apply to the provision of law-related services, when that may not be the case. See id.
For exactly that reason, Rule 5.7(a) states, in pertinent part:
(a) A lawyer shall be subject to the Rules of Professional Conduct . . . if the law-related services are provided:
(1) By the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or
(2) In other circumstances if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client–lawyer relationship do not exist.
Comment 6 to Rule 5.7 makes clear that this communication with a person should be made before entering into an agreement for law-related services, and preferably should be in writing. Id. Not surprisingly, the burden is upon the lawyer to show that he or she has taken reasonable measures under the circumstances to communicate the desired understanding to the person. Rule 5.7(a)(2) & cmt. 7.
In prior opinions the D.C. Bar Legal Ethics Committee has recognized that, as a general matter, an attorney–client relationship can be created as a result of reasonable expectations of the client and a failure of the lawyer to dispel these expectations. See D.C. Bar Legal Ethics Ops. 306 (2001), 316 (2002); see also In re Lieber, 442 A.2d 153, 156 (D.C. 1982) (finding that a client’s perception of an attorney as his counsel is a significant consideration in determining whether a relationship exists).
Disclosures of this type, to clarify the lawyer’s role and the terms of the lawyer’s interaction with another person, are well known to the practicing lawyer, and plainly required by other rules as well. See, e.g., Rules 1.2, 1.5, 4.2, 4.3. Nonetheless, Rule 5.7 more specifically identifies a lawyer’s ethical responsibilities in this often blurry area of law-related services. It is inherently blurry because when a lawyer provides law-related services, the lawyer is often acting as a nonlawyer.
The January 2007 “Speaking of Ethics” column covered existing Legal Ethics Committee opinions that addressed whether a lawyer’s ethical duties are different when the lawyer is acting in a nonlawyer capacity (e.g., as a guardian or a licensed insurance or real estate broker). See D.C. Bar Legal Ethics Ops. 226 (1992), 306 (2001), 336 (2006). Directing the analysis of which rules of conduct applied was the determination of whether an attorney–client relationship ever existed. The committee had concluded in Opinions 226, 306, and 336 that the attorney–client relationship is not usually created when a lawyer is acting as a nonlawyer. The facts in those three inquiries supported the conclusion that the interaction was between a lawyer acting in nonlawyer role and a customer, as opposed to a (former or current legal) client. Therefore, no attorney–client relationship had been created, past or present.
Comparable issues arise in Opinion 337 (2007) (lawyer as expert witness). The outcome in Opinion 337 turns on the existence of an attorney–client relationship in answering a complementary question concerning the ethical obligations of a lawyer acting as an expert witness. Again, the committee reviewed the factors that control when the lawyer is potentially acting no differently than a nonlawyer would in the same role. Generally, lawyers who are expert witnesses are employed to testify about requirements of the law or standards of legal practice. The evidence that an expert witness provides lies within the expert’s special area of knowledge by reason of training and experience, regardless of whether or not the expert is a lawyer.
The inquirer in Opinion 337 had served as an expert witness in litigation of banking matters. While planning to testify on behalf of the plaintiff at a trial and/or hearing in a new matter, the defendant bank’s attorney objected to the inquirer’s serving as an expert witness because one or both of the law firms with whom the inquirer was formerly employed did legal work for the defendant bank in prior years. Neither the inquirer nor the inquirer’s current firm had ever worked on any previous matter for the defendant bank.
The committee found that if the inquirer served solely as an expert witness on behalf of another law firm’s client and the law firm explained this role to the client at the outset, then the expert witness would not typically have an attorney–client relationship with the party for whom she may be called to testify. Consequently, without an attorney–client relationship the relevant rules relating to conflicts of interest from representation of former clients, Rules 1.9 and 1.10(a), are inapplicable here. (The lawyer as expert witness is distinguished from a lawyer consultant giving expert legal advice to a firm or a client because the latter undertakes representation and all the duties therein.)
Moreover, because the lawyer as expert witness is presented to the tribunal as an objective witness and must provide opinions adverse to the party for whom the lawyer expects to testify if frankness so requires, the lawyer could not legitimately comply with all duties to a client. For instance, Rule 1.3 requires all lawyers to diligently advance their client’s objectives through all lawful means, but that role would be inconsistent with that of an expert witness.
Thus, while a lawyer acts as an expert witness separate from his or her law practice, Rule 5.7 of the D.C. Rules of Professional Conduct, in addition to Rules 1.3(b), 1.7(b), 1.8(a), 3.3(a), 3.3(d), 8.3, and 8.4(c), will govern the lawyer’s conduct.
Legal ethics counsel are available for telephone inquiries at 202-737-4700, ext. 231 and 232, or by e-mail at firstname.lastname@example.org.