Saturday, November 14, 2020

Client-Generated Engagement Letters And Outside Counsel Guidelines Draw Proposed New Ethics Rules In D.C.

The District of Columbia Bar Professional Conduct Review Committee has just issued a draft  report  seeking comments on proposed changes to ethics rules

Summary of Recommendations
The Committee’s proposed amendments to the D.C. Rules would limit certain practices that: (1) restrict the ability of prospective clients to engage counsel of their choice; (2) impose restrictions on lawyers’ independence and right to practice; (3) can render outside counsel liable for damages sustained by clients or others through no fault of such counsel; (4) restrict a lawyer’s right to retain a copy of a client’s file, including the lawyer’s work product; (5) restrict a lawyer’s right to make use of general, non-confidential information acquired in the course of a representation; and (6) can compel outside counsel to accept clients’ unilateral changes in the terms of a representation.

Specifically, the proposed amendments would:

  •  Amend Rules 1.7 and 5.6 to remove the existing open-ended permission for a lawyer and client to expand the scope of what constitutes a conflict of interest under the D.C. Rules, except where broader coverage is required by other law;
  • Amend Rule 1.8 to prohibit a lawyer from proposing or accepting conditions that impose liability on a lawyer that is broader than the liability imposed by statute or common law;
  • Amend Rule 1.16 to make clear that a lawyer may retain copies of client files, including the lawyer’s work product, but may not use that work product in other matters if the Rules’ confidentiality provisions prohibit such use;
  • Amend Rule 1.6 to make clear that a lawyer is not only permitted, but obligated, to use general (i.e., not client-specific) knowledge gained in the course of a representation for the benefit of subsequent clients; and
  • Amend Rule 1.16 to provide that where a lawyer has agreed that her client may make unilateral changes in the terms of a representation, the lawyer may withdraw if the client makes a material change to which the lawyer is unwilling to assent.

The Committee’s “Draft Report on Proposed Changes to the D.C. Rules of Professional Conduct Relating to Client-Generated Engagement Letters and Outside Counsel Guidelines (November 2020)” can be found here

Commenters should address the need for as well as the text of the proposed amendments.  Commenters also are invited to address the proposed amendments regarding conflicts of interest, and specifically whether there are other, less far-reaching approaches that would appropriately limit the current open-ended ability of lawyers and clients to set the limits of what constitutes a conflict of interest.

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 (Attn: Rules of Professional Conduct Review Committee) no later than COB February 11, 2021 (90 days after publication of call for comment). 

(Mike Frisch)

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