Q&A With Tom Mason: Rules Changes and the Changing Practice of Law

By Jeffery Leon

March 11, 2019

Tom Mason Resize

The D.C. Bar Rules of Professional Conduct Review Committee is seeking public comment on proposed amendments to the D.C. Rules of Professional Conduct pertaining to technology and confidentiality, outsourcing, In re Kline, post-conviction exculpatory information: special responsibilities of a prosecutor, and nondiscrimination and antiharassment. Comments are due April 5.

Rules Review Committee vice-chair Tom Mason says public comments are vital in ensuring that the committee has crafted rules that continue to uphold the values and standards of the legal profession and that adequately protect clients and the public at large from improper conduct by lawyers.

“The D.C. Rules are rules to be proud of, but they need to evolve and adapt to changing environments and public concerns about lawyers and their role in society. These are positive steps that will serve us well,” says Mason, chair of the legal ethics and malpractice group at Harris, Wiltshire & Grannis LLP.

Mason says the new additions to Rule 3.8 are particularly important in maintaining confidence in the criminal justice system while also providing “clear direction and guidance to prosecutors about their ethical responsibilities regarding exculpatory information in a variety of contexts.”

Below, Mason breaks down the proposed rules changes and what they mean for attorneys.

Keeping Up With Tech
Technology has become a vital part of the practice of law. The proper use and understanding of technology is crucial for litigation, particularly where e-discovery is involved. Similarly, data protection is an increasing challenge, and the issues relating to data security have increased in scope and complexity.

The amendments to Rule 1.1 require that the lawyer have some level of familiarity with the use of technology and the risks of that use in the practice. The amendments to Rule 1.6 stress the obligation to protect client data from outside intrusion and provide some general guidance on the level of security that is mandated by Rule 1.6. The changes to Rule 4.4 are clarifying modifications to define the scope and reach of a lawyer’s obligations with respect to the receipt of inadvertently sent information more precisely, and to address the issue of the knowing receipt of wrongfully obtained materials.

Using Outside Assistance
The client should know who is doing their work where a lawyer goes outside of their firm to retain either additional legal resources or nonlawyer assistance. The lawyer’s decision to retain such assistance from outside of their law firm must be a reasonable one, evaluated according to the circumstances. The lawyer needs to take appropriate steps to ensure that the lawyers and nonlawyers being retained from outside of their law firm are qualified and competent to assist in the representation.

Conversely, the lawyer may follow the direction of the client to use specified lawyers or nonlawyers from outside of their firm, except where that direction is inconsistent with the terms of the lawyer’s engagements or otherwise puts at risk the competent representation of the client. In such instances, the lawyer must contact the client and may withdraw from the representation.

Revising Rule 3.8 Post-In re Kline
Prior to the In re Kline decision, the D.C. Rules were unclear about whether the scope of ethical obligation to disclose exculpatory material in criminal cases was co-extensive with constitutional doctrine under Brady. In the Kline case, the Court of Appeals held that Rule 3.8(e) went further than Brady in some respects, but in other respects [it] did not follow the full scope of the Brady obligation. The amendments clarify that materiality or any assessment of the impact of the information on the ultimate result is not an element of the disclosure requirement under the Rule. Conversely, while Brady obligations are imposed upon the government as a whole, the amendments make clear that the Rule reaches only scenarios where a prosecutor has actual knowledge of information that the prosecutor knows or should know tends to negate or mitigate the guilt of the defendant.

Handling Post-Conviction Exculpatory Information
The committee is recommending new rules, based upon the ABA Model Rules, to provide guidance to prosecutors as to their obligations when they discover information post-conviction that raises a substantial question regarding the guilt of a convicted person. The requirements of the new provisions vary according to whether the conviction was obtained in the prosecutor’s jurisdiction, and vary based on the impact of the evidence on the conviction.

Prohibiting Discriminatory Conduct
This amendment broadens the rules to prohibit discriminatory conduct of a lawyer outside of conditions of employment. While this rule has engendered some controversy, the District of Columbia was a pioneer in enacting ethical prohibitions on discrimination in the context of conditions of employment. This new rule provides a means to enforce in bar proceedings improper discrimination beyond employment-related conduct. The committee did not find enough reason to maintain the current narrow scope of the antidiscrimination rule.

Submit Comments
The Rules Review 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.