Rules Review Committee Invites Comment on Proposed Changes to D.C. Rule 1.8(d)

October 20, 2023

The District of Columbia Bar’s Rules of Professional Conduct Review Committee is seeking comments about proposed amendments to D.C. Rule of Professional Conduct 1.8 that would expand the District’s existing exceptions to the general rule that prohibits a lawyer from advancing or guaranteeing financial assistance while representing a client in connection with contemplated or pending litigation or administrative proceedings.

Comments are due by close of business on Monday, December 18, 2023.

Summary of Recommendation

Prompted by relatively recent amendments to ABA Model Rule 1.8 as well as adoption of New York’s “humanitarian exception,” the Rules Review Committee proposes amendments to D.C. Rule 1.8 to clarify and elaborate on financial assistance that may be provided to indigent clients receiving pro bono legal services in the District and with what limitations such assistance may be provided.

In addition to the two existing exceptions to D.C. Rule 1.8(d) that permit a lawyer to advance or guarantee financial assistance to the client in limited circumstances, the proposed amendment would specifically allow a lawyer to provide financial assistance to indigent clients when the lawyer is affiliated with a not-for-profit or government-funded legal services organization, a public interest organization, or a law school clinic, or is providing legal services pro bono.

Pursuant to the new exception, prior to providing such assistance, the lawyer must agree in writing to the client not to collect fees under any applicable fee-shifting statute, and such a lawyer also may not: (1) promise, ensure, or imply the availability of such financial assistance prior to retention or as an inducement to continue the client–lawyer relationship after retention; (2) seek reimbursement from the client, a relative of the client, or anyone affiliated with the client; or (3) publicize or advertise a willingness to provide such financial assistance to prospective clients.

Committee Report and Process

The committee’s “Draft Report on Proposed Changes to D.C. Rule 1.8(d) (Humanitarian Exception) (October 2023)” can be found here.

Comments must be in writing. The committee’s intention is that any future publication referencing comments received in response to this request will not include details that would identify commenters, regardless of whether feedback is submitted in an individual capacity or on behalf of a group or organization.

Written comments should be submitted by email to [email protected] (Attn: Rules of Professional Conduct Review Committee) no later than COB Monday, December 18, 2023.

The D.C. Bar’s Rules of Professional Conduct Review Committee considers potential changes to the Rules. The committee’s final recommendations are transmitted to the Bar’s Board of Governors, which in turn decides whether to transmit such recommendations to the D.C. Court of Appeals for its consideration. Changes to the Rules and accompanying comments are made only by the Court of Appeals.