D.C. To Consider Screening

From the web page of the District of Columbia Court of Appeals

Comments Sought on Move to Amend Rules 1.10, 1.15, and 7.1

June 16, 2015

The District of Columbia Court of Appeals is soliciting public comment on proposed amendments to the D.C. Rules of Professional Conduct that include revisions to Rules 1.10 and 7.1 and comments thereto, and the addition of a new comment to Rule 1.15.

The proposed amendments were submitted to the court by the D.C. Bar Board of Governors on recommendation of the Bar’s Rules of Professional Conduct Review Committee.

The proposed amendments are summarized below:

A. Rule 1.10 (Imputed Disqualification: General Rule)
Amend Rule 1.10 and its comments to allow ethical screening (without client consent) of lawyers moving laterally between private employers with certain initial notice requirements to former clients. The committee further recommends the addition of a new subparagraph (f) to address situations in which a law firm cannot provide required notifications without violating confidentiality obligations to an existing client.

B. Rule 7.1 (Communications Concerning a Lawyer’s Services)
Amend Rule 7.1 and its comments to prohibit the payment of referral fees, but continue to allow payment of the usual and reasonable fees or dues charged by a lawyer referral service. These changes will restore the approach the District used prior to the 1991 adoption of a rule allowing the use of paid intermediaries or “runners,” which was repealed in 2007.

C. Rule 1.15 (Safekeeping Property)
Adopt a new Comment [2] of Rule 1.15 to provide more detailed guidance to lawyers on financial record keeping for trust accounts. Delete Section 19(f) of Rule XI of the Rules Governing the Bar as largely duplicative of the obligations arising under Rule 1.15(a). The committee recommends that the guidance on financial record keeping: (1) reflect the purpose of the “complete records” language of Rule 1.15 as interpreted and explained by the D.C. Court of Appeals in In re Clower, 831 A.2d 1030 (D.C. 2003); and (2) encourage lawyers to consult the ABA Model Rules on Client Trust Records.

Read the court’s notice of public comment as well as additional information about the Bar’s proposal, including the report of the Rules Review Committee.

The Court of Appeals declined to accept the committee’s recommendation to establish a new Rule 8.6 that would have imposed on all Bar members a duty to disclose exculpatory information about a convicted person and has instead asked the committee to study further ABA Model Rules 3.8(g) and (h) and whether the D.C. Rules should be amended to include those provisions.

Ten copies of any written comments should be submitted to the Clerk, D.C. Court of Appeals, 430 E Street NW, Washington, DC 20001, by August 10. All comments submitted concerning the proposed amendments will be available to the public.

(Mike Frisch)