Rules Review Committee Requests Comment on Client-Generated Engagement Letters and Outside Counsel Guidelines

May 3, 2019

The District of Columbia Bar Rules of Professional Conduct Review Committee is seeking input and comments from D.C. Bar members, representatives of law firms, solo practitioners, corporate legal departments, and nonlawyers about whether issues relating to client-generated engagement letters (ELs) and outside counsel guidelines (OCGs) should be addressed through changes in the D.C. Rules of Professional Conduct and accompanying comments, and if so, how. Comments must be received by June 30, 2019.

Specifically, the committee is considering whether changes should be recommended to regulate and clarify the extent to which clients may contractually require lawyers to engage or refrain from engaging in certain conduct or practices. Such contractual terms typically appear in client-generated ELs or OCGs. Although clients and lawyers have considerable latitude to contract with one another as they see fit, some have raised concerns as to whether in certain respects client-generated ELs and OCGs may overreach and unduly restrict the public’s access to legal representation and the professional independence of lawyers, or may conflict with the Rules.

Examples of contractual terms that have been identified by some as raising concerns include (but are by no means limited to):

• Terms that define the “client” as including all subsidiaries, affiliates, or parent companies of the entity to which the lawyer’s services pertain, regardless of whether the work relates in any way to those affiliated entities or involves access to confidential information of those affiliated entities, and in some instances, regardless of whether the lawyer is in a position to determine the identity of such related entities.

• Terms that restrict a lawyer from providing services to competitors of the client, even if the work is unrelated to the work performed by the lawyer for the client and the lawyer has no confidential information of the client relevant to the work for its competitor. Also, terms requiring disclosure of representation of competitors or sometimes of non-competitors whose representation might be of interest to the client.

• Terms that otherwise expand the definition of a conflict beyond those found in the Rules, for example, including potential conflicts that have not yet arisen or legal positions taken in different proceedings and forums for different clients.

• Terms that require lawyers to indemnify (1) clients for matters not resulting from a lawyer’s negligence, recklessness, or willful misconduct; or (2) non-clients such as officers, directors, or employees of the client; or (3) clients for acts of parties outside the lawyer’s control. Some have observed that additional liability assumed by the lawyer by contract may not be covered by malpractice insurance, thus potentially disadvantaging the lawyer, the requesting client, and the lawyer’s other clients.

The committee’s intention is that any publication referencing comments will paraphrase or summarize them without details that would identify individual or organization commenters. The committee will consider identifying commenters (whether individuals or organizations) who state expressly in their comments that they are willing to be identified.

Comments and suggestions should be sent by email to [email protected] or by mail to: 

Rules of Professional Conduct Review Committee
Attention: Hope C. Todd
District of Columbia Bar
901 4th Street NW
Washington, DC 20001

The District of Columbia Bar Rules of Professional Conduct Review Committee considers potential changes to the D.C. Rules of Professional Conduct. The committee’s recommendations are forwarded to the Board of Governors of the D.C. Bar, which in turn decides whether to forward such recommendations to the D.C. Court of Appeals for its consideration. Changes to the Rules are made only by the Court of Appeals.