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
cc:
Ellen M. Jakovic
Liaison, Board of Governors
Charles R. Mills
Steering Committee Member and Principal Drafter of this Comment
(1) For example, the confidential information revealed may be personal in nature, whereas the matter may relate to a business issue.
(2) This text follows the structure of the relevant
ABA Rule language.
