Former Rules of Professional Conduct: Preface
As a result of the Court Reorganization Act of 1970, the District of Columbia Court of Appeals was given disciplinary authority over lawyers practicing in the District. That authority, which was previously exercised by the United States District Court for the District of Columbia, was officially transferred to the Court of Appeals on April 1, 1972. On that date all members of the Bar of the District Court for the District of Columbia were automatically enrolled as members of the Bar of the District of Columbia Court of Appeals, and were made subject to its disciplinary jurisdiction. Pursuant to its new disciplinary jurisdiction, the Court of Appeals in 1972 adopted the American Bar Association’s (ABA’s) Model Code of Professional Responsibility, promulgated by the ABA in 1969, with certain amendments that were voted on by members of the Bar and approved by a wide margin. These changes included the deletion of DR 1-102(A)(6), the modification of DR 1-103, and the substitution of Canon 20 for DR 7-107(G) and (H).
One additional change made in 1972 was considered to be of major significance. The Court of Appeals deleted from DR 7-102(B)(1) a clause that appeared to require the lawyer to reveal that the lawyer’s client has perpetrated a fraud on the tribunal. This amendment anticipated the ABA’s 1974 amendment to DR 7-102(B)(1), stating that the lawyer need not reveal the client’s fraud when that information is protected as a "privileged communication," and the ABA’s later holding that the "privileged communications" protected by the new clause included all client "confidences and secrets" required to be preserved under the confidentiality Rule set forth in DR 4-101 of the Code. ABA Formal Opinion 341 (Sept. 30, 1975). The ABA also explained in Opinion 341 that the amendment had been merely a clarifying one, intended to reflect the original intention of DR 7-102(B)(1).
Over the years, the code was amended further by the Court of Appeals. See, e.g., DR 5-103(B) (revised April 18, 1980); DR 2-103(E) (added on June 11, 1981). Major changes in Canon 2’s provisions regarding publicity and advertising, professional notices and letterheads, solicitation, and limitation of practice were made in 1978. And in 1982, following several years of debate and study of the "revolving door" between government and nongovernment practice, Canon 9 was modified extensively, with major changes in DR 9-101, and the addition of a new DR 9-102 dealing with imputed disqualification.
On February 22, 1985, the court added DR 9-103(C), authorizing certain clients’ funds to be placed in interest-bearing accounts benefiting a court-approved Interest on Lawyers Trust Accounts program.
Also during the years, certain amendments to the ABA code were automatically incorporated in the District of Columbia version by virtue of an adoption provision contained in the court’s Rule X. Examples include amendments to DR 2-102(C)and DR 3-102(A)(3).
On August 2, 1983, the ABA House of Delegates adopted the Model Rules of Professional Conduct. On August 15, 1983, David B. Isbell, then president of the District of Columbia Bar, recommended to the District of Columbia Court of Appeals that the new Model Rules not be adopted automatically and recommended procedures for consideration of the ABA proposals by the District of Columbia Bar and the court. With the approval of the court, the Board of Governors of the Bar established the District of Columbia Bar Model Rules of Professional Conduct Committee to make recommendations to the Board of Governors of the District of Columbia Bar regarding adoption of the Model Rules. The committee, chaired by Robert E. Jordan III, Esq., sought comments from members of the Bar and, after almost two years of detailed and intensive review of the ABA’s proposal, issued a report recommending adoption of a number of the ABA proposals, adoption of others with minor changes, and substantial modifications, additions, or deletions with respect to other portions of the ABA proposal. The committee’s report was transmitted to the Board of Governors of the Bar in September 1985.
In the October/November 1985 issue of Bar Report, the Board of Governors solicited comments to the committee report from the public and Bar members. The board received comments from over 35 organizations, law firms, and individuals. Many commentators addressed a number of different Rules.
The Board of Governors made a detailed review of the committee proposal and the comments received. The board discussed the Rules at its regular meetings on September 10, 1985, October 8, 1986, November 12, 1986, February 4, 1986, March 11, 1986, April 8, 1986, June 17, 1986, and July 15, 1986. In addition, the board held a series of special meetings exclusively devoted to the Rules. These special meetings were held on December 16, 1986, January 28, 1986, February 25, 1986, March 25, 1986, May 1, 1986, May 9, 1986, May 23, 1986, May 28, 1986, and June 5, 1986.
A public meeting was held to discuss the committee proposal on May 1, 1986. Certain Rules were also the focus of discussion at the midyear meeting of the District of Columbia Bar on March 4, 1986, and the annual meeting on June 25, 1986.
During its discussion of the proposed Rules and Comments, the Board of Governors recognized the need for special study of potentially unique problems associated with applying rules of professional conduct to Bar members who are serving as lawyers for governments. As recommended by the Model Rules of Professional Conduct Committee, the board appointed a special committee known as the Special Committee on Government Lawyers and the Model Rules of Professional Conduct, chaired by Joe Sims, Esq. This committee began its consideration of situations unique to the role of government lawyers.
By petition dated November 19, 1986, the Board of Governors of the District of Columbia Bar requested that the District of Columbia Court of Appeals adopt Rules of Professional Conduct and Related Comments as set forth in recommendations attached to the petition. Subsequently, while the petition of November 19, 1986, was pending with the court, the Board of Governors submitted three petitions supplementing or amending the November 19 petition. These further petitions were dated March 13, 1987 (seeking modifications to Rules 1.6 and 1.10 and Related Comments), September 11, 1987 (seeking modifications to Rule 5.4 and Related Comments), and June 30, 1988, (seeking modifications to Rules 1.7 and 1.6 and Related Comments, and to the Comments to Rule 8.3).
While the court was considering the Bar’s various petitions, the Sims Committee completed its work, and its report was transmitted to the Board of Governors. After consideration by the Board of Governors, the Sims Committee’s report was forwarded to the court on December 1, 1988.
Between November 19, 1986, and September 1, 1988, the Board of Judges met on numerous occasions to consider the pending petitions of the District of Columbia Bar. As a result of its deliberations and discussions at these meetings, the Board of Judges determined to make proposed additions, deletions, and modifications to the language of the proposed Rules and Comments, subject to publication, for comment by members of the Bar and the public, of a version of the Rules and Comments that reflected such tentative modifications.
On September 1, 1988, the court ordered that the following proposed Rules of Professional Conduct and Related Comments be published in Bar Report issue of August/September 1988 for comment by interested members of the Bar and other persons, such comments to be filed with the clerk of the District of Columbia Court of Appeals on or before December 1, 1988.
More than 50 comments, many of considerable length and detail, were received in response to the court’s order publishing the proposed Rules and Comments for comment. The court requested that Robert E. Jordan III, chair of the D.C. Bar Model Rules of Professional Conduct Committee, furnish the court an analysis of the comments received. Mr. Jordan’s analysis was submitted to the court on May 3, 1989. Thereafter, the Board of Judges met on a number of occasions to consider the comments received. A number of modifications to provisions of the Rules and Comments were made in response to the comments received by the court.
The court had also been considering the report of the Sims Committee, and during meetings of the Board of Judges in the fall of 1989, various recommendations of the Sims Committee were adopted and incorporated in the Rules and Comments along with the changes resulting from consideration of the December 1988 comments filed with the court.
On March 1, 1990, the court entered an order promulgating this Preface, the Scope and Terminology sections that follow, and the Rules and Comments that are set forth below as Rules of Professional Conduct Applicable to Members of the District of Columbia Bar, with an effective date of January 1, 1991. The order of March 1, 1990, also specified that, effective January 1, 1991, the Code of Professional Responsibility as in effect on December 31, 1990, was rescinded. The court’s order also provided, however, that as to conduct occurring prior to the rescission of the Code of Professional Responsibility, the provisions of that code in effect on the date of the conduct in question would apply as the governing rules of decision for Bar Counsel, the hearing panels of the Board on Professional Responsibility, the Board on Professional Responsibility, and the court in disciplinary proceedings.
The Rules provide standards for the professional conduct of members of the District of Columbia Bar. In the absence of uniform rules in the states, the court recognized the importance of responding to the recommendations and comments of its bar. As a result, the court—like the highest courts of many other jurisdictions—has departed in some respects from the model professional rules promulgated by the American Bar Association in August 1983, while adopting many of the association’s proposals designed to improve the disciplinary system. The court has carefully considered the recommendations of the Board of Governors of the District of Columbia Bar as well as the comments of members of the Bar on the proposed rules that were published in September 1988. The new Rules, however, will not meet everyone’s concerns or objections—an impossibility given conflicting positions—and the court anticipates that, as in the past, experience will demonstrate that further modifications may be appropriate.
Over the course of the next year, the District of Columbia Bar will sponsor a series of educational workshops on the new Rules. All members of the Bar are encouraged to attend, for the Rules are complex and comprehensive. All members of the Bar, of course, will be subject to the Rules whether or not they attend a workshop.
Finally, the court and the Bar have been assisted throughout their consideration of the Rules by Robert E. Jordan III, Esq. His effort has immeasurably facilitated the court’s review of the Board of Governors’ proposals and the comments received by the court after publication of the proposed Rules in September 1988. The court accordingly wishes to acknowledge Mr. Jordan’s outstanding contribution in addressing both the concerns of the Bar and the interests of the community served by lawyers. The court also recognizes the contributions of the members of the Model Rules of Professional Conduct Committee chaired by Mr. Jordan, of the District of Columbia Bar Special Committee on Government Lawyers and the Model Rules of Professional Conduct, chaired by Joe Sims, Esq., of the members of the Board of Governors of the District of Columbia Bar, and of the many individuals, law firms, and government agencies affording the court the benefit of their comments.