November 29, 2005
Garland Pinkston, Jr., Clerk
District of Columbia Court of Appeals
500 Indiana Avenue, NW, Sixth Floor
Washington, DC 20001
Re: Proposed District of Columbia Bar Ethics Rule 1.18
Dear Mr. Pinkston:
This submission is being made on behalf of the Steering Committee of the Section on Corporation, Finance and Securities Law (the "Steering Committee") of the D.C. Bar Association (the "DC Bar") in response to the request for comment by the District of Columbia Court of Appeals on the comprehensive amendment to the District of Columbia Rules of Professional Conduct recommended by the Board of Governors of the DC Bar (“Board of Governors”). This comment specifically addresses proposed Ethics Rule 1.18, Duties to Prospective Client (the "DC Bar Rule").
The Steering Committee has
approved the submission of these comments. The views expressed herein
represent only those of the Steering Committee and not those of the
D.C. Bar, the Board of Governors, or the Section on Corporation, Finance
and Securities Law.
The Steering Committee agrees, in general, with the objectives of the Board of Governors and DC Bar’s Rules of Professional Conduct Review Committee, which reported on the recommended amendments, in clarifying this important area of client representation regarding a lawyer’s duties to a prospective client. We understand from the excellent explanation of the DC Bar Rule that careful consideration was given to the efficacy and clarity of ABA Model Rule 1.18 (the "ABA Rule"), which provided the model for the proposed DC Bar Rule.
Requirement that Information Be Significantly Harmful
The major concern of the Steering Committee is with respect to the proposed changes to paragraph (c), which change is also reflected in paragraph (d). Following is the relevant text of paragraph (c) of the ABA Rule marked to show the changes proposed in the DC Bar Rule. Additional language is in boldface; deleted language is in brackets:
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received [information] a confidence or secret from the prospective client [that could be significantly harmful to that person in the matter], except as provided in paragraph (d).
We support the proposal to
replace the word "information" with the words "a confidence
or secret." This change would clarify that, although a prospective
client may have provided information to the lawyer that could be considered
harmful to the prospective client (as provided in the ABA Rule), if
that information is not confidential or secret (i.e., the information
was generally known or available through other means), the lawyer should
not be disqualified from representing another client in the same or
a substantially related matter.
We believe, however, that the words "that could be significantly harmful to that person in the matter" should not be deleted from the paragraph. While this language may not, as indicated in the explanation to the proposed DC Bar Rule, have provided needed clarity in the context of the ABA Rule’s use of the word "information," the language takes on new meaning and is necessary in the context of the Board’s revised language. Even though a prospective client may have revealed information that is considered a confidence or secret, we believe that it cannot be assumed that the confidence or secret relates to that specific matter or that the confidence or secret would be harmful to the prospective client. In fact, we believe that it would not be unusual for a prospective client, in certain contexts, to reveal information that may be beneficial to the person even though the information is not yet a matter of public knowledge. Further, while we agree that a lawyer may appropriately seek to limit a prospective client’s revelation of information, a client may nonetheless disclose all sorts of confidential and secret information that may not, however, be material or germane to that or a similar matter(1).
We are concerned that an overly broad application of the proposed DC Bar Rule would increase the difficulty for a prospective client to obtain representation by the attorney of their choice because the attorney had a conversation with a prior potential client. Even if the prospective client agreed to waive the conflict, the prior prospective client may not agree to do so in furtherance of their own interests – or may simply not be responsive to the attorney’s request for a waiver.
We, therefore, urge the Court to reinsert the language "that could be significantly harmful to that person in the matter" in order to require that there be a nexus between the revelation and the new matter and a standard for considering whether the confidence or secret is harmful to the person in the context of that matter. Consistent with this recommendation, we believe that paragraph (d) should be revised as follows: "When the lawyer has received a disqualifying confidence or secret from the prospective client as determined pursuant to paragraph (c), representation is permissible if . . . ."(2)
* * *
We hope that these comments will be helpful to the Court in its development of the final version of the proposed DC Bar Rule. We would be pleased to discuss any aspects of these comments with the members of the Court or its staff.
Questions may be directed
to Charles R. Mills at (202) 778-9096 or to the Steering Committee Chair,
Arthur Cohen at (202) 371-7892.
The Steering Committee of the Corporation, Finance and Securities Law Section of the District of Columbia Bar
Ellen M. Jakovic
Liaison, Board of Governors
Charles R. Mills
Steering Committee Member and Principal Drafter of this Comment