Bar Seeks Comment on Proposed Amendments to Certain D.C. Rules of Professional Conduct

February 4, 2019

The D.C. Bar Rules of Professional Conduct Review Committee is soliciting public comment from Bar members and others on its final draft report and recommendations to amend certain D.C. Rules of Professional Conduct. Comments are due by close of business on April 5, 2019.

Before submission to the Bar’s Board of Governors, the Committee requests comment on the proposed amendments summarized below. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules.

1. Technology and Confidentiality

Amend Comment [5] to Rule 1.1 to specify the continuing responsibility of lawyers to stay abreast of changes in technology as a matter of competence. Amend Rule 1.6 and Comments to address a lawyer’s duty to exercise reasonable care to prevent unauthorized access to electronic information and the reasonableness of security measures to be taken by a lawyer when using and storing electronic communications. Amend Rule 4.4 and Comments to clarify a lawyer’s obligations after receiving inadvertently sent information or metadata.

2. Outsourcing

Amend the Comments to Rules 1.1 and 5.3 to address a lawyer’s duties when outsourcing legal work or when using “outside” or contract lawyers. The proposed changes include language requiring the lawyer to inform the client about the identity of the other lawyers who will participate in the representation and the contemplated division of responsibility among them, as well as amendments to better address situations where the client, not the lawyer, is directing the outsourcing.

3. In Re Kline

Amend Comment [1] to Rule 3.8 to make it consistent with the District of Columbia Court of Appeals holding in In re Kline, 113 A.3d 202 (D.C. 2015), a disciplinary matter in which the Court was asked to determine whether a federal prosecutor had improperly withheld potentially exculpatory evidence during the prosecution of a criminal matter and should be disciplined under D.C. Rule 3.8(e). The court rejected the suggestion in existing Comment [1] to Rule 3.8 that Rule 3.8(e) is coextensive with and bounded by constitutional principles applicable in the criminal context.

4. Post-Conviction Exculpatory Information: Special Responsibilities of a Prosecutor

Amend Rule 3.8 and Comments to make them more closely aligned with ABA Model Rules 3.8(g) and (h), but with some significant differences. In May 2015, the District of Columbia Court of Appeals asked the Bar to reconsider paragraphs (g) and (h) of ABA Model Rule 3.8, which impose duties on prosecutors to disclose certain post-conviction exculpatory information, and to determine whether the District of Columbia should adopt similar provisions.

5. Nondiscrimination and Antiharassment

Amend Rule 9.1, which prohibits discrimination by lawyers in conditions of employment based on a list of enumerated classes, to substantially align it with ABA Model Rule 8.4(g) addressing discrimination and harassment in conduct related to the practice of law. The Rules Review Committee also recommends amending Comment [3] to Rule 8.4 to cross-reference Rule 9.1.

For Information and to Submit Comments

More information about this call for public comment, including the Committee’s final draft report and recommendations, can be found here.

Written comments should be submitted by email to [email protected] or by mail to: Rules Review Committee, c/o Hope C. Todd, D.C. Bar, 901 4th Street NW, Washington DC, 20001, no later than April 5, 2019. For hard copies of the report, please contact Duane Tolson at 202-780-2777.