Thursday, July 2, 2020

D.C. Considers Rule Changes

From the web page of the District of Columbia Bar

Bar Invites Comment on Proposed Amendments to Certain D.C. Rules of Professional Conduct

June 30, 2020

The D.C. Bar Rules of Professional Conduct Review Committee is seeking public comment on two separate proposals to amend certain D.C. Rules of Professional Conduct. Comments are due by close of business on August 31, 2020. 

Before submission to the Bar’s Board of Governors, the Committee requests comment on the proposed amendments summarized below. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules. 

Government Lawyers/Identity of Client 

The Rules Review Committee proposes the elimination of Rule 1.6(k), a rule that creates a default assumption that the client of the government lawyer is the agency that employs the lawyer, as well as the comments to Rule 1.6 that reference Rule 1.6(k). In place of Rule 1.6(k), the Committee recommends the adoption of a comment to Rule 1.13 (Organization as Client), which provides a more nuanced analysis of the identity of the client of the government lawyer and is consistent with the substantive law. 

Additionally, the Committee proposes a change to comment [10] to Rule 1.11 (Successive Government and Private or Other Employment) on lawyers moving between government agencies within the same the government. The current version is based on the notion that the client of the government lawyer is the employing agency. The proposed comment would instead subject lawyers moving between positions within the same government to Rule 1.9 (Conflict of Interest: Former Client).  

Disciplinary Choice of Law 

The Rules Review Committee proposes amending Rule 8.5(a) to clarify that lawyers licensed in the District, but providing legal services in other jurisdictions, may be subject to the disciplinary authority and ethics rules of those other jurisdictions. Additionally, the Committee proposes the addition of a new subparagraph (3) to Rule 8.5(b) to provide a “safe harbor” provision for a lawyer who acts under the reasonable belief that his or her conduct is governed by the rules of another jurisdiction. Corresponding revisions to the comments to Rule 8.5 are also proposed.  

During its review of Rule 8.5, the Committee considered and rejected other proposals to modify Rule 8.5, as outlined in its report. In particular, the Committee did not recommend adopting the “predominant effect test” of ABA Model Rule 8.5(b)(2). However, the Committee agreed to circulate for comment a Committee member’s “Alternate Proposal to Adopt Model Rule 8.5(b)(2).”

Submit written comments by email to Rules of Professional Conduct Review Committee, c/o Hope C. Todd, at ethics@dcbar.org no later than August 31, 2020.

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