ETHICS OPINIONS TITLES/HEADINGS

February 2021 THE DISTRICT OF COLUMBIA BAR

210- Representation of Criminal Defendants by Attorney Seeking Position as Assistant U.S. Attorney. Rule 1.7. (1990)

211- Fee Agreements; Mandatory Arbitration Clauses. Rule 1.5(b), Rule 1.8(a), Rule 1.8(g). (1990)

212- Representation by Law Firm Adverse to Former Client in a Substantially Related Matter After Lawyers Who Represented Former Client Have Left the Law Firm. Rule 1.10(c). (1990)

213- Defense Counsel’s Obligation to Inform Court of Adverse Evidence. Rule 1.6, Rule 3.3. (1990)

214- Disclosure to Internal Revenue Service of Name of Client Paying Fee in Cash. Rule 1.6(a), Rule 1.6(d). (1990)

215- Communication With Potential Client Currently Represented by Other Counsel. Rule 4.2(a). (1990)

216- Representation of Closely Held Corporation in Action Against Corporate Shareholder. Rule 1.13(a). (1991)

217- Multiple Representation; Intermediation. Rule 1.7, Rule 2.2. (1991)

218- Retainer Agreement Providing for Mandatory Arbi tra-tion of Fee Disputes Is Not Unethical. Rule 1.5, Rule 1.6(a)(5), Rule 1.8. (1991)

219- Conflict of Ethical Obligations. Rule 1.6(d)(2)(A), Rule 3.3(d), Rule 4.1(b). (1991)

220- Threats to File Disciplinary Charges. Rule 8.4(g). (1991)221- Law Firm Employment Agreement. Rule 1.4, Rule

5.6(a), Rule 7.1. (1991)222- Attorney’s Obligation Under Rule 9.1 Does Not Apply

to Lawful Acts Outside the District of Columbia. Rule 8.5, Rule 9.1. (1991)

223- Nondisclosure of Protected Information to Funding Agency. Rule 1.6. (1991)

224- Misleading Firm Name. Rule 7.1(a), Rule 7.5(a), Rule 7.5(b). (1991)

225- Prepaid Legal Services. Rule 1.3, Rule 1.6, Rule 1.7, Rule 1.8(e), Rule 5.4(e), Rule 5.5, Rule 7.1. (1992)

226- Service by Lawyer in Private Practice as In-House Counsel and Real Estate Broker. Rule 1.7(b), Rule 1.7(c)(2), Rule 7.1(a). (1992)

227- Imputed Disqualification and Screening of Paralegals. Rule 1.9, Rule 1.10, Rule 5.3. (1992)

228- Lawyer-Witness Participation in Pretrial Proceedings. Rule 1.4(b), Rule 1.7(b), Rule 3.7(a). (1992)

229- Surreptitious Tape Recording by Attorney. Rule 8.4(c). (1992)

230- Assertion of Retaining Liens; Preservation of Confi-dences and Secrets of Trust Client in Dispute Between Former Co-trustee and Successor Trust. Rule 1.16(d), Rule 1.8(i), Rule 1.6. (1992)

231- Lawyer as Legislator. Rule 1.2(b), Rule 1.3(b)(3), Rule 1.7(b)(4), Rule 6.4. (1992)

232- Multiple Clients/Criminal Matter. Rule 1.7(b), Rule 1.10(a), Rule 1.16(a), Rule 4.2(a). (1992)

233- Payment of “Success Fees” to Nonlawyer Consultants. Rule 5.4. (1993)

234- Defense Counsel’s Duties When Client Insists on Testifying Falsely. Rule 3.3. (1993)

235- Registered Limited Liability Partnership/Limited Liability Company. Rule 1.4(b), Rule 1.8(g), Rule 5.4(b), Rule 7.1(a), Rule 7.5(b). (1993)

236- Divulging Client Confidences and Secrets in a Bank-ruptcy Proceeding in Order to Collect Fees Is Per mitted in Limited Circumstances. Rule 1.6(d)(5). (1993)

237- Conflict of Interests: Previous Representation of Witness in Unrelated Matter. Rule 1.6, Rule 1.7, Rule 1.9, Rule 1.10. (1992)

238- Written Fee Agreements. Rule 1.1, Rule 1.4(a), Rule 1.5(b). (1993)

239- Attorney–Client Relationship Between a Lawyer and Her Firm; Reporting of Professional Misconduct. Rule 1.6, Rule 1.9, Rule 8.3(a). (1993)

240- Ethical Obligations of D.C. Corporation Counsel Attorneys Representing Custodial Parents in Social Security Act Title IV-D Cases. Rule 1.6, Rule 1.7, Rule 1.9, Rule 1.10, Rule 4.3. (1993)

241- Financial Penalty Imposed on Departing Lawyer Who Engages in Legal Practice in D.C. Area. Rule 5.6(a). (1993)

242- Ethical Obligations of Attorney Holding Documents Provided by Client That May Be Property of Third Party. Rule 1.2(e), Rule 1.6, Rule 1.15, Rule 3.4(a). (1993)

243- Joint Representation in Divorce Cases. Rule 1.7(a), Rule 2.2. (1993)

244- Inclusion of Name of Nonlawyer Partner in Firm Name. Rule 5.4(b), Rule 7.5. (1993)

245- Payment of Referral Fee to a Lawyer for Recom men-dation of Registered Agent. Rule 1.7(b)(4). (1993)

246- A Lawyer’s Obligation to Report Another Lawyer’s Misconduct. Rule 1.3(b)(2), Rule 1.6, Rule 8.3. (1994)

247- Whether Settlement Lawyer Selected by Real Estate Purchaser Has a Sufficient Lawyer–Client Relationship With Seller to Warrant Disqualification; Conflict of Interest if Adverse Party Formerly Was Represented by a Firm to Whom Lawyer Is “Of Counsel.” Rule 1.7, Rule 1.9(a), Rule 1.10, Rule 2.2, Rule 4.3. (1994)

248- Whether Lawyer May Represent Multiple Plaintiffs Claiming Employment Discrimination in Selection of Other Person for Position They Sought. Rule 1.2, Rule 1.3, Rule 1.7. (1994)

249- Lawyer Advertising. Rule 7.1(a). (1994)

250- Duty to Turn Over Files of Former Client to New Lawyer When Unpaid Fees Are Outstanding. Rule 1.8(i), Rule 1.16(d). (1994)

251- Safekeeping of Settlement Proceeds Claimed Both by the Client and a Third Person. Rule 1.15, Rule 1.6. (1994)

252- Obligations of a Lawyer Appointed Guardian Ad Litem in a Child Abuse and Neglect Proceeding With Respect to Potential Tort Claims of the Child. Rule 1.2, Rule 1.3, Rule 1.4, Rule 1.7, Rule 1.14. (1994)

253- Referral Fee Arrangement Between Law Firms and Insurance Companies. Rule 1.3(a)-(b), Rule 1.7(b)-(c), Rule 5.4, Rule 7.1. (1994)

254- Use of Abbreviations by Limited Liability Companies, Limited Liability Partnerships, and Professional Limited Liability Companies. Rule 7.1(a), Rule 7.5(a)-(b). (1995)

255- Use of Former Firm Lawyer on a Contract Basis. Rule 1.5(e), Rule 1.7(b)(4), Rule 1.10(a), Rule 7.1(a). (1995)

256- Inadvertent Disclosure of Privileged Material to Opposing Counsel. Rule 1.1, Rule 1.6, Rule 1.15, Rule 8.4(c). (1995)

257- Disclosure Obligations of Criminal Defense Lawyer Charged With a Crime by the Prosecutor. Rule 1.3, Rule 1.7. (1995)

258- Application of Rule 4.2(a) to Lawyers as Parties Proceeding Pro Se. Rule 4.2. (1995)

259- Conflict Issues in Representations Involving Estates. Rule 1.7, Rule 1.9. (1995)

260- Agreements Limiting the Professional Liability of Lawyers to Former Clients. Rule 1.8(g), Rule 8.3(a), Rule 8.4. (1995)

261- Emergency Room Referrals by a Law School Clinical Program. Rule 7.1. (1995)

262- Application of Rule 1.5(d) to Receipt of a Contingent Fee in a Writ of Error Coram Nobis Proceeding. Rule 1.5(d). (1995)

263- Contacts With Persons Represented by Counsel; Application of Rule 8.4(g) to Criminal Contempt Proceedings. Rule 1.4(a), Rule 4.2(a), Rule 8.4(g). (1996)

264- Refunds of Special Retainers; Commingling of Such Funds With the General Funds of the Law Firm Upon Receipt. Rule 1.15, Rule 1.16. (1996)

265- Positional Conflicts of Interest in Simultaneous Representation of Clients Whose Positions on Matters of Law Conflict With Other Clients’ Positions on Those Issues in Unrelated Matters. Rule 1.7. (1996)

266- Withdrawal From Representation Requiring Court Approval; Withdrawal Conditioned on Disclosure of Client’s Whereabouts. Rule 1.6, Rule 1.16, Rule 3.4(c). (1996)

267- Disclosure of Billing Practices: Billings Based on Time and “Attorney Charge.” Rule 1.5, Rule 7.1(a)(1), Rule 8.4(c). (1996)

268- Conflict of Interest Issues Where Private Lawyers Provide Volunteer Legal Assistance to the D.C. Corporation Counsel: Reconsideration of Opinion 92. Rule 1.2, Rule 1.7. (1996)

269- Obligation of Lawyer for Corporation to Clarify Role in Internal Corporate Investigation. Rule 1.7, Rule 1.8(e), Rule 1.13, Rule 4.3. (1997)

270- Whether Subordinate Lawyer Must Alert Client and Report Superior’s Misconduct After Lawyer Has Left Practice. Rule 1.4, Rule 1.16, Rule 5.2, Rule 8.3, Rule 8.4. (1997)

271- Inactive Members: Business Cards and Letterhead. Rule 7.1, Rule 7.5. (1997)

272- Conflict of Interests: “Hot Potato.” Rule 1.7, Rule 1.9, Rule 1.16. (1997)

273- Ethical Considerations of Lawyers Moving From One Private Law Firm to Another. Rule 1.4, Rule 1.7, Rule 1.8(i), Rule 1.10(b), Rule 1.16(d), Rule 7.5(a), Rule 8.4(c). (1997)

274- Government Agency Attorneys May Participate in a Public Meeting at Which Claimants Who Are Repre-sented by Counsel Are Present. Rule 4.2(a). (1997)

275- Receipt of Confidential Information Bars Subsequent Representation of Another Client in the Same or a Substantially Related Matter Unless Screen Can be Erected. Rule 1.6, Rule 1.10. (1997)

276- Lawyer–Mediator Must Conduct Conflicts Check. Rule 1.7, Rule 2.2, Rule 8.4. (1997)

277- Retention by Former Law Firm of Withdrawing Partner’s Name. Rule 7.1, Rule 7.5. (1997)

278- Partnership With Foreign Lawyer. Rule 5.1, Rule 5.5, Rule 7.5(b), Rule 7.5(d). (1998)

279- Availability of Screening as Cure for Imputed Disqualification. Rule 1.7, Rule 1.8(b), Rule 1.9, Rule 1.10, Rule 1.11, Rule 2.2. (1998)

280- Direct Communications Between a Lawyer Representing a Client and Members of a Local Government Board. Rule 4.2(d). (1998)

281- Transmission of Confidential Information by Electronic Mail. Rule 1.6. (1998)

282- Duties of Lawyer Employing a Social Worker Who Is Obligated to Report Child Abuse. Rule 1.6, Rule 5.3. (1998)

283- Disposition of Closed Client Files. Rule 1.8(i), Rule 1.15, Rule 1.16(d), Rule 3.4(a). (1998)

284- Advising and Billing Clients for Temporary Lawyers. Rule 1.2, Rule 1.4, Rule 1.5, Rule 7.1, Rule 7.5. (1998)

285- Nonlawyer Former Government Employee Working for a Lawyer. Rule 1.11, Rule 4.4, Rule 5.3, Rule 8.4. (1998)

286- Contingent Referral Fees. Rule 1.5(e), Rule 5.4(a), Rule 7.1(b)(5). (1998)

287- Ex Parte Contact With Former Employees of Party Opponents. Rule 4.2, Rule 4.3, Rule 4.4. (1998)

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288- Compliance With Subpoena from Congressional Sub-committee to Produce Lawyer’s Files Containing Client Confidences or Secrets. Rule 1.6(d)(2)(A). (1999)

289- “Cause” Litigation by a Nonprofit Foundation Run by Nonlawyers; Prospectively Restricting Clients’ Right to Waive Attorney’s Fees or Agree to a Confidential Settlement. Rule 1.2, Rule 1.6, Rule 1.7, Rule 1.8, Rule 5.4. (1999)

290- Disclosure of Protected Information of Insured to Insurers and Outside Auditing Agencies. Rule 1.6, Rule 1.8(e). (1999)

291- Contracts With Temporary Lawyers: Restrictions on Subsequent Employment. Rule 5.6(a). (1999)

292- Conflict of Interest: “Thrust Upon” Conflict. Rule 1.7, Rule 1.16. (1999)

293- Disposition of Property of Clients and Others Where Ownership Is in Dispute. Rule 1.15. (2000)

294- Sale of Law Practice by Retiring Lawyer. Rule 1.5(a), Rule 1.5(e), Rule 1.6, Rule 1.7, Rule 1.16. (1999)

295- Restriction on Communications With a Represented Parent by a Lawyer Acting as Guardian Ad Litem in a Child Abuse and Neglect Proceeding. Rule 3.5, Rule 4.2, Rule 8.4(a). (2000)

296- Joint Representation: Confidentiality of Information. Rule 1.4, Rule 1.6, Rule 1.7, Rule 1.16. (2000)

297- Representation of Client in Negotiated Rulemaking Proceeding for Which Lawyer Was Responsible While in Government. Rule 1.6, Rule 1.7, Rule 1.11. (2000)

298- Sale or Assignment of Accounts Receivable to a Collection Agency. Rule 1.5, Rule 1.6, Rule 5.3, Rule 5.4. (2000)

299- Duty of Confidentiality to Corporate Client That Has Ceased Operations. Rule 1.6. (2000)

300- Acceptance of Ownership Interest in Lieu of Legal Fees. Rule 1.5(a), Rule 1.7(b), (c), Rule 1.8(a). (2000)

301- Conflict of Interest: Simultaneous Representation of Two Plaintiffs Against a Common Defendant in Separate but Related Lawsuits. Rule 1.7(b). (2000)

302- Soliciting Plaintiffs for Class Action Lawsuits or Obtaining Legal Work Through Internet-Based Web Pages. Rule 1.6, Rule 3.6, Rule, 4.3, Rule 5.4, Rule 7.1. (2000)

303- Sharing Office Space and Services by Unaffiliated Lawyers. Rule 1.6, Rule 1.7, Rule 1.10, Rule 7.1, Rule 7.5. (2001)

304- Management of a Law Firm’s Human Resources Functions by an Employee Management Company. Rule 1.8(g)(1), Rule 5.1, Rule 5.3, Rule 5.4, Rule 5.5(b). (2001)

305- Ethical Considerations Arising From Representation of Trade Association. Rule 1.6, Rule 1.7, Rule 1.13, Rule 1.16. (2001)

306- Practicing Law While Simultaneously Selling Insur-ance. Rule 1.6, Rule 1.7, Rule 1.8, Rule 8.4. (2001)

307- Participation in Government Program Requiring Pay-ment of Percentage of Fee. Rule 5.4, Rule 7.1. (2001)

308- Ethical Constraints on Lawyers Who Leave Private Employment for Government Service. Rule 1.6, Rule 1.7, Rule 1.9, Rule 1.10. (2001)

309- Advance Waivers of Conflicts of Interest. Rule 1.6, Rule 1.7, Rule 1.9, Rule 1.10, Rule 2.2. (2001)

310- Propriety of Lawyer Charging Interest When the Client Fails to Pay Fees. Rule 1.5. (2001)

311- Choice-of-Law Rules for Professional Conduct in Non-Judicial Proceedings. Rule 8.4(a), Rule 8.5(b). (2002)

312- Information That May Be Appropriately Provided to Check Conflicts When a Lawyer Seeks to Join a New Firm. Rule 1.6, Rule 1.10. (2002)

313- Whether a Lawyer May Continue to Represent a Client When That Lawyer Represented the Same Client in the Same Matter While Serving as a Public Officer or Employee. Rule 1.6, Rule 1.11. (2002)

314- Whether a Nonlawyer Union Employee May Supervise a Union Attorney. Rule 1.2, Rule 1.7, Rule 1.8, Rule 1.13, Rule 4.3, Rule 5.4. (2002)

315- Personal and Substantial Participation in Prior Litigation. Rule 1.11. (2002)

316- Lawyers’ Participation in Chat Room Commun ica-tions With Internet Users Seeking Legal Information. Rule 1.1, Rule 1.2, Rule 1.3, Rule 1.4, Rule 1.6, Rule 1.7, Rule 1.9, Rule 7.1. (2002)

317- Repudiation of Conflict of Interest Waivers. Rule 1.7, Rule 1.9, Rule 1.16. (2002)

318- Disclosure of Privileged Material by Third Party. Rule 1.1(a) and (b), Rule 1.3(a), Rule 1.6(a) and (e), Rule 1.15(b), Rule 8.4(c). (2002)

319- Purchase by a Lawyer of a Legal Claim From a Nonlawyer. Rule 1.8(a), Rule 8.4(c). (2003)

320- Jury Nullification Arguments by Criminal Defense Counsel. Rule 1.3, Rule 3.1, Rule 3.3, Rule 8.4. (2003)

321- Communications Between Domestic Violence Peti-tioner and Counsel for Respondent in a Privately Litigated Proceeding for Criminal Contempt. Rule 1.3, Rule 4.1, Rule 4.2, Rule 4.3, Rule 5.3, Rule 8.4. (2003)

322- Whether a Nonlawyer Employed by a Law Firm May Be Partly Compensated by a Percentage of the Profits of the Cases on Which He Worked. Rule 5.4. (2004)

323- Misrepresentation by an Attorney Employed by a Government Agency as Part of Official Duties. Rule 8.4. (2004)

324- Disclosure of Deceased Client’s Files. Rule 1.6. (2004)325- Agreement to Distribute Former Firm Profits to Partners

From Former Firm Only as Long as They Continue to Practice in New Merged Firm. Rule 5.6(a). (2004)

326- Referral of Person Adverse to a Client to Another Lawyer. Rule 1.3, Rule 1.4, Rule 1.6, Rule 1.7, Rule 4.3. (2004)

February 2021 THE DISTRICT OF COLUMBIA BAR

327- Joint Representation: Confidentiality of Information Revisited. Rule 1.3, Rule 1.4, Rule 1.6, Rule 1.7, Rule 1.16. (2005)

328- Personal Representation of Constituents of an Organization, Including Individuals Who Participate in an Organization’s Governance. Rule 1.7, Rule 1.8(e), Rule 1.9, Rule 1.13. (2005)

329- Nonprofit Organization Fee Arrangement With an Attorney to Whom it Refers Matters. Rule 5.4(a), Rule 7.1(b)(5). (2005)

330- Unbundling Legal Services. Rule 1.1, Rule 1.2, Rule 1.3, Rule 1.4, Rule 1.6, Rule 1.7, Rule 1.9, Rule 3.3, Rule 4.2, Rule 4.3. (2005)

331- Contact With In-House Counsel of a Represented Entity. Rule 4.2. (2005)

332- Firm Names for Solo Practitioners. Rule 7.5, Rule 7.1. (2005)

333- Surrendering Entire Client File Upon Termination of Representation. Rule 1.8(i), Rule 1.16(d). (2005)

334- Agreement Between Lawyer and Media Represen ta-tives. Rule 1.8(c), Rule 1.7(b)(4), Rule 1.7(c). (2006)

335- Whether a Lawyer May, as Part of a Settlement Agreement, Prohibit the Other Party’s Lawyer From Disclosing Publicly Available Information About the Case. Rule 1.2, Rule 1.6, Rule 5.6, Rule 7.1. (2006)

336- A Lawyer’s Fiduciary Role as a Court-Appointed Guardian of an Incapacitated Individual. Rule 3.3, Rule 8.4. (2006)

337- Lawyer as Expert Witness. Rule 1.4, Rule 1.6, Rule 1.7, Rule 1.9, Rule 1.10, Rule 8.4. (2007)

338- Whether A Law Firm May Retain the Name of a Partner Who Becomes Both “Of Counsel” to that Law Firm and a Partner in a Different Law Firm Also Bearing His Name. Rule 1.10, Rule 7.1, Rule 7.5. (2007)

339- Threat of Criminal Referral in Civil Debt Collection Matter. Rule 4.1, Rule 4.3, Rule 8.4. (2007)

340- Contacts With Government Officials in Litigated Matters. Rule 4.2(d). (2007)

341- Review and Use of Metadata in Electronic Docu-ments. Rule 1.6, Rule 3.4, Rule 4.4, Rule 8.4. (2007)

342- Participation in Internet-Based Lawyer Referral Services Requiring Payment of Fees. Rule 5.4, Rule 7.1. (2007)

343- Application of the “Substantial Relationship” Test When Attorneys Participate in Only Discrete Aspects of a New Matter. Rule 1.2, Rule 1.9, Rule 1.10. (2008)

344- Conflicts of Interest for Lawyers Engaged in Lobby-ing Activities That Are Not Deemed to Involve the Practice of Law. Rule 1.0(h), Rule 1.6, Rule 1.7, Rule 1.10, Rule 1.11, Rule 5.3, Rule 5.4, Rule 5.7. (2008)

345- Reimbursement of Interest Charges Incurred When a Lawyer Uses The Firm’s Line of Credit to Advance the Costs of the Representation. Rule 1.5, Rule 1.8(d). (2008)

346- The Required Elements for Triggering a Duty of Confidentiality to a Prospective Client. Rule 1.6, Rule 1.18 (2009)

347- Reverse Contingent Fees. Rule 1.5 (2009)348- Accepting Credit Cards for Payment of Legal Fees.

Rule 1.5, Rule 1.4(b), Rule 1.6, Rule 1.15, Rule 1.16, Rule 7.1 (2009)

349- Conflicts of Interest for Lawyers Associated with Screened Lawyers Who Participated in a Joint Defense Group. Rule 1.6, Rule 1.7, Rule 1.9, Rule 1.10 (2009)

350- Whether A Lawyer Is Obliged To Surrender To A Former Client Work-Product Procured Through The Former Client’s Factual Misrepresentations. Rule 10(f), Rule 1.2(e), Rule 1.6(d), Rule 1.16(d), Rule 3.3(a). (2009)

351- Sharing Legal Fees with Clients. Rule 1.5(a), Rule 1.8(d), Rule 1.15(b), Rule 5.4(a). (2009)

352- Professional Responsibility Duties for Temporary Contract Lawyers and the Firms that Hire Them. Rule 1.6, Rule 1.9, Rule 1.10, Rule 4.4. (2010)

353- Whether a lawyer representing a client with dimin-ished capacity can seek the appointment of a sub-stitute surrogate decision-maker when the current surrogate decision-maker is making decisions for the client against the advice of a lawyer. Rule 1.2, Rule 1.14, Rule 1.16 (2010)

354- Providing Financial Assistance to Immigration Clients Through Lawyer’s Execution of Affidavit of Support on Form I-864 as a Joint Sponsor. Rule 1.7, Rule 1.8(d), Rule 1.16. (2010)

355- Flat Fees and Trust Accounts: (a) must a lawyer deposit flat fees paid in advance of the conclusion of a representation in a trust account?; and (b) when are such funds earned so that a lawyer can transfer them to an operating account? Rule 1.0(e) & (o), Rule 1.5(b), 1.15(a) & (e). (2010)

356- Absence of Conflict of Interest When Lawyer Cannot Identify Affected Clients and Nature of Conflict; Applicability of “Thrust Upon” Exception Where Lawyer Cannot Seek Informed Consent. Rule 1.6, Rule 1.7. (2010)

357- Former Client Records Maintained in Electronic Form (2010)

358- Subpoenaing Witness When Lawyer for Congressional Committee Has Been Advised that Witness Will Decline to Answer Any Questions on Claim of Privilege; Legal Ethics Opinion 31 Revisited (2011)

359- Disposition of Missing Client’s Trust Account Monies in the District of Columbia (2011)

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360- Contact With Non-Party Treating Physician Witness (2011)

361- Lawyer’s Acceptance of Compensation From Non-Lawyer Entity for Referring Client to Such Entity; Opinion 245 Overruled in Part (2011)

362- Non-lawyer Ownership of Discovery Service Vendors (2012)

363- In-House Lawyer’s Disclosure or Use of Employer/Client’s Confidences or Secrets in Claim Against Employer/Client for Employment Discrimination or Retaliatory Discharge (2012)

364- Confidentiality Obligations When Former Client Makes Ineffective Assistance of Counsel Claim (2013)

365- Conflict of Interest Analysis for Government Agency Lawyer Defending Agency from Furlough-Related Employment Complaints While Pursuing Her Own Furlough-Related Employment Complaint (2013)

366- Ethical Issues that Commonly Arise in Private Adoption Matters (2014)

367- Representation of Client by Lawyer Seeking Employment with Entity or Person Adverse to Client, or Adversary’s Lawyer; Clarification of Opinion 210 (2014)

368- Lawyer Employment Agreements—Restrictions on Departing Lawyer Who Competes with Former Firm (2015)

369- Sharing of Legal Fees Wtih a Lawyer Referral Service (2015)

370- Social Media I: Marketing and Personal Use (2016)371- Social Media II: Use of Social Media in Providing

Legal Services (2016)372- Ethical Considerations in Law Firm Dissolutions

(2017)373- Court-Ordered Representation of Clients in Criminal

Domestic Violence Matters Who Are Party to Parallel Civil Protection Order Proceedings (2017)

374- Ethical Obligations Regarding Prospective Client Information (2018)

375- Ethical Considerations of Crowdfunding (2018)376- Mandatory Arbitration Provisions in Fee Agreements

(2019)377- Duties When A Lawyer is Impaired (2019)378- Acceptance of Cryptocurrency as Payment for Legal

Fees (2020)379- Attorneys’ Charging Liens and Client Confidentiality

(2020)380- Conflict of Interest Issues Related to Witnesses

(2021)381- Responding to Third-Party Subpoena (2021)

February 2021 THE DISTRICT OF COLUMBIA BAR

November 2002

on the scope of "secrets" is contained in Comment [8] to the D.C. version of Rule 1.6, which observes that with respect to a former representation at least, "secrets" do not include information that has become "generally known." We believe that in the context of a lawyer who has moved, or is contemplating a move, to another firm and is determining what information may be revealed for check­ing conflicts with that firm, the bar on revealing "secrets," in addition to not applying to information that is harmless or unexceptionable, would also not pre­vent the lawyer from discussing informa­tion that would otherwise be a secret but has become generally known.8

We stress that we are here referring to information that is truly generally known so that the lawyer in question is certain that the information is not new to the per­son whom the lawyer is discussing it with. For example, if the press has wide­ly reported that a particular corporation was one of several that had been sued by a federal agency, then it could hardly be argued that a moving lawyer had revealed a "secret" by mentioning that he or she had worked on that litigation at the exist­ing firm. The lawyer must make the judgment of whether particular informa­tion is a secret or not (see our Opinion No. 128). We caution that because such decisions are made in the almost entirely private context of a lawyer seeking employment in another firm, the lawyer must err on the side of protecting infor­mation where any doubt exists.

Rule of Professional Conduct because the ABA model Rule 1.6 language was "broader than war­ranted." Report of the D.C. Bar Model Rules of Professional Conduct Committee (the so-called Jordan Committee) and the Board of Governors, November 19, 1986, at 52. The Jordan Committee noted that the ABA version of the rule barred lawyers from revealing any information "relating to the representation." As an example of the over­breadth of this formulation, the Committee noted that information would be protected by it if that information came to the lawyer via a newspaper after the representation had ended. Id. While the Jordan Committee did not mention this, the ABA version would also bar the lawyer from mentioning any such information even if it could not possibly cause injury, or even were favorable, to the client. We think it plain that this is another example of overbreadth of the ABA version when compared to the DC Rule, which protects as "secrets" only information that the client has requested be held inviolate or the revelation of which would embar­rass or be deleterious to the client.

8 We doubt that the word "reveal" (Rule

1.6(a)(l)) even properly applies to the act of stating a fact to a hearer who already knows that fact. Fur­ther, it is questionable whether the act of disclosing a fact to a person can embarrass or be detrimental to someone within the meaning of the definition of "secret" in Rule 1.6(b) if the person to whom it was disclosed already knows it.

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Without the former client's consent, therefore, a lawyer may, in checking con­flicts at a new firm, reveal information about representations that is not privi­leged and is not a secret because it has not been requested by that client to be held inviolate and the revelation of which would not be harmful or embarrassing to that client or has become generally known. In the great majority of cases, we believe, this leaves lawyers free to reveal sufficient information to carry out a reli­able conflict check. Information about many representations would not harm or embarrass the client where the basic facts of the representation are unexceptionable or already known to opponents or others who are not the client, including, for example, regulatory agencies or other government bodies.

Moreover, it is typically necessary to reveal only the most general information about a representation in order to deter­mine, positively or negatively, whether a representation may cause a conflict. This is clear from the holding in T.C. Theatre Corp. v. Warner Brothers Pictures men­tioned above. See also, Brown, supra, 486 A. 2d at 49-50. In T.C. Theatre, a lawyer's former client was the opponent in litigation of the lawyer's current client, and the former client moved to disqualify that lawyer and the lawyer's firm, claim­ing that in the former representation the lawyer learned confidential information from the then-client that would presently be useful in opposing that former client. The lawyer denied that he had received such information in the former represen­tation. Judge Weinfeld ruled that to inquire into the truth of the assertions about what information had been confid­ed in the earlier representation would require the revelation of the very confi­dential information sought to be protect­ed. To avoid that, he held, the appropriate inquiry would be whether the current rep­resentation was "substantially related" to the former. If it was, then it would be presumed that confidences were given in the former representation that would be of use against the former client in the lat­ter. To effectuate this test, the subject matter of former representation is described in general terms and compared to the current representation. As noted above, this standard is codified in Rule 1.9 of the D.C. Rules as the primary determinant of whether a lawyer may oppose the interests of a former client on particular issues. As we have described, to avoid discouraging lawyer mobility Rule 1.1 0(b) imports a narrower version of the substantially related test (under which the subject matter is compared but

219

there must be actual possession by the lawyer of protected information rather than simply presuming possession); but the basic process of comparing represen­tations to determine whether they involve similar subject matter is the same under Rule 1.1 0(b) as it is under Rule 1.9. It could hardly have been intended that Rule 1.1 0(b) impose a standard for checking conflicts that cannot be applied without revealing secrets protected by Rule 1.6.

There are, of course, many instances in which the facts surrounding a representa­tion (such as that client X is contemplat­ing a takeover of another business or has consulted a divorce lawyer or a criminal defense lawyer) may be extremely sensi­tive and so fraught with the possibility of injury or embarrassment to that client that absent a waiver that information is not subject to disclosure even for the pur­pose of checking conflicts.9 See D.C. Rule 1.7, comment [19]. There is no spe­cific exemption to the confidentiality rules in Rule 1.6 or elsewhere that per­mits a lawyer to reveal confidential infor­mation for the purpose of checking or seeking waiver of a conflict. This does not, mean, however, that there are no techniques that may in many cases allow conflicts to be adequately checked while at the same time assuring confidentiality to the full measure required by the Rules. A helpful discussion of possible ap­proaches is provided in New York State Bar Opinion No. 720 (1999). Some rough guidelines or suggestions follow. Howev­er, the appropriateness and usefulness of such shortcut techniques as these sug­gested here can really only be judged on a case by case basis.

• As noted above, as a general rule itis merely necessary to compare theclient name and the general subjectmatter of the representation. Thisinformation is often, though notalways, neither privileged nor a secret.• In some cases, identifying a partic­ular issue or subject matter withoutidentifying the client name may be suf­ficient to determine the lack of anyconflict (see Opinion No. 265 on posi­tional conflicts).• If the subject matter but not theclient name is sensitive, it will often bepossible to avoid the sensitive areas ifthe moving lawyer mentions only the

9

This is a familiar difficulty in the context of seeking a waiver of a conflict. Even where a lawyer believes that a waiver would be given, it cannot be sought if in order to inform the would-be waiving client sufficiently it is necessary to reveal confidential information about the other client the revelation of which would not be consented to.

248 THE DISTRICT OF COLUMBIA BAR April 2004

warning in the context of an interview ofan unrepresented person, and we havefound no substantive District of Colum-bia law that imposes such a requirement.To the contrary, in adopting Rule 4.3 theCourt of Appeals struck a different bal-ance between the public interest in pro-tecting unrepresented persons from beingmisled about counsel’s role and adversecounsel’s interests in interviewing unrep-resented persons. That balance seeks toprotect the unrepresented person frombeing misled about counsel’s role, butdoes not require that counsel actively dis-courage the unrepresented person fromproviding information to counsel orcounsel’s agents.

Other sources of professional responsi-bility guidance further support the con-clusion that it is not within the scope ofdefense counsel’s duties to inform unrep-resented persons, even complaining wit-nesses, of their legal situation. See, e.g.,A.B.A. Standards for Criminal Justice 4-4.3, “Relations with Prospective Witness-es” (“It is not necessary for defensecounsel or defense counsel’s investigator,in interviewing a prospective witness, tocaution the witness concerning possibleself-incrimination and the need for coun-sel.”); Restatement of the Law GoverningLawyers § 106, comment c (“A lawyerother than a prosecutor . . . is not requiredto inform any nonclient witness orprospective witness of the right to invokeprivileges against answering”). It followsthat, if defense counsel has no duty toadvise an unrepresented person of poten-tial criminal consequences in agreeing toan interview, that counsel also has noduty to advise an unrepresented person,including an opposing party, of otherlegal consequences. Accordingly, we seeno warrant to extend the requirements ofRule 4.3 to require Miranda-type warn-ings in the context of interviews ofunrepresented persons by counsel orcounsel’s agents representing clients withadverse interests.

In sum, we conclude that, as generalmatter, counsel for a respondent maydirect an investigator to seek an interviewwith an unrepresented petitioner, butmust make reasonable efforts to ensurethat the investigator does not mislead thepetitioner about the investigator’s role. Inaddition, respondent’s counsel mustinstruct the investigator that, if it appearsthat the petitioner misunderstands theinvestigator’s role, the investigatorshould take “whatever reasonable, affir-mative steps are necessary to correct themisunderstanding.” D.C. Rule 4.3 com-ment [2]. Finally, an investigator may askan unrepresented petitioner to sign sub-

stantive documents, but must take “greatcare” that the unrepresented personunderstands that neither the lawyer northe investigator is giving legal advice inconnection with the preparation or execu-tion of such documents. D.C. Rule 4.3,comment [1].

The second general matter the inquirerraises is whether, in cases in which coun-sel represents the petitioner in a contemptproceeding based on violation of a CPO,respondent’s counsel must obtain permis-sion of petitioner’s counsel before seek-ing to interview the petitioner. Theinquirer reports that some defense coun-sel view such petitioners not as parties,but merely as witnesses in the contemptproceeding, and argue that Rule 4.2therefore does not apply or that Rule 4.2is trumped by defense counsel’s duty ofzealous advocacy. Such a characteriza-tion is precluded by commentary to Rule4.2 and by earlier opinions of this Com-mittee.

Comment 4 to D.C. Rule 4.2 explicitlyprovides that any person who is repre-sented by counsel concerning “the matterin question” falls within the ambit of theRule, “whether or not a party to a formalproceeding.” D.C. Rule 4.2 comment [4].Accordingly, if the petitioner is repre-sented by counsel, Rule 4.2 is applicableand forbids the respondent’s lawyer frominterviewing the petitioner without per-mission from the petitioner’s lawyer,regardless of whether the petitioner is aformal “party” to the contempt proceed-ing.

Our conclusion further rests on ourOpinion No. 263, in which we opinedthat a CPO modification proceeding anda CPO contempt proceeding, both basedon the same underlying CPO, constitutethe same “matter” under Rule 4.2. D.C.Ethics Op. 263 (1996). In that opinion weaddressed a situation in which a lawyerrepresenting a domestic violence CPOpetitioner sought communication withthe respondent about seeking a modifica-tion of the CPO to strengthen its protec-tions. The petitioner’s lawyer had alsofiled contempt charges based on allegedviolations of the CPO. The court appoint-ed counsel to represent the respondent inthe contempt proceeding, but that counselrepresented the respondent only in thecontempt proceeding, and not on theCPO modification motion. The petition-er’s lawyer accordingly inquired whetherthe respondent was “represented” forpurposes of D.C. Rule 4.2 in the separateCPO modification proceeding. We con-cluded that, “at least with respect to liti-gation, a particular litigation is a‘matter.’” Id. In support of this conclu-

sion, we reasoned that:

While litigation may have many facetsto it, those facets typically have at leastsome facts, evidence and legal princi-ples in common. Activities or develop-ments in one facet of a case rarely fail tohave implications in others.

We also relied on ABA Ethics Opinion95-396 (1995), which interpreted theterm “matter” in ABA Model Rule 4.2 asencompassing that which was sufficient-ly “defined and specific, such that thecommunicating lawyer can be placed onnotice of the subject of representation.”D.C. Ethics Op. 263, quoting ABA EthicsOp. 95-396 (1995). Accordingly, wedecided that “the relevant ‘matter’ is thelegal proceeding brought by the domesticviolence victim, with the CPO modifica-tion and contempt motions being but dif-ferent aspects of that proceeding.”

Under this approach, the domestic vio-lence case constitutes the litigation, andthe CPO and contempt proceedingsinvolve aspects of the same underlying“matter” for purposes of D.C. Rule4.2(a), even though counsel may repre-sent the persons involved only withrespect to some aspects of the litigation.If the petitioner is represented by counselin connection with the domestic violencematter, the petitioner is represented as to“the subject of the representation” forpurposes of Rule 4.2 (a). Accordingly, therespondent’s lawyer or investigator maynot contact the petitioner without theconsent of the petitioner’s lawyer orunless otherwise authorized by law to doso.

Inquiry No.: 00-10-37Adopted: June 2003Published: June 2003

Opinion No. 322

Whether a Nonlawyer Employed by aLaw Firm May Be Partly Compensatedby a Percentage of the Profits of theCases on Which He Works

● A law firm may not compensate anonlawyer employee, hired to work ondesignated class action claims againstdefendants who are members of a partic-ular industry, based on a percentage ofthe profits earned from those cases. If thelawyers in the firm and the nonlawyerwere to establish a separate partnershipor other form of organization to litigatethe class action cases, the fee arrange-ment would be permissible, provided thatthere were compliance with the restric-

April 2004 THE DISTRICT OF COLUMBIA BAR 249

tions of Rule 5.4(b) and other relevantrules governing such organizations.

Applicable Rule

● Rule 5.4 (Professional Independenceof a Lawyer)

Inquiry

The inquirer is a partner in a small lawfirm. The firm is engaged in a series ofclass actions, in which it represents theplaintiff class, asserting claims againstdefendants who all are members of a par-ticular industry. Notice to class represen-tatives of compensation arrangementswith employees would be possible, but itwould be impractical to notify the puta-tive class members. It is likely that thesecases and new, related cases will contin-ue for some years. Fees are contingentupon settlement or recovery. The firmcontemplates that it will collect feesirregularly as some cases are resolved.

The firm has hired—as an employee—a nonlawyer, who has worked as a con-sultant in the relevant industry, to assist itin this series of cases. The employee iscurrently paid a modest base salary and ispaid on an hourly basis for the time thathe spends on the series of cases. The firmwishes to alter the compensation systemfor this employee. It proposes to continuepaying him a modest salary, but for futurecases, plans to compensate him from therevenue received from the series of classactions. The compensation would workin the following fashion: The employeeand the firm’s lawyers would keep trackof their hours spent working on thisseries of cases as well as their expenses.As fees from these cases were received,they would be used to pay the employeefor his expenses and for his time spent onthe series of cases at an agreed-uponhourly rate. The firm also would be paidfor its lawyers’ expenses and time spentas fees were received. If the fees wereinsufficient to compensate both theemployee and the firm for the time spentprior to receipt, the fees would be divid-ed on a pro rata basis between theemployee and the firm, and the uncom-pensated hours, as well as any additionalhours spent, would be compensated fromthe next fees that were received. If thefees were more than sufficient to com-pensate the employee and the firm forexpenses and hours, the remaining fundswould be divided between the employeeand the lawyers on a pro rata basisdepending on their respective contribu-tions of expenses plus hours times hourly

rates. The employee could never receivemore than 49 percent of those fees. If thefees did not materialize, the employeewould receive no compensation otherthan his modest base salary. If the feeswere inadequate to compensate theemployee and the lawyers for all theirhours at their agreed-upon hourly rates,they would share proportionally in theshortfall.

The following example illustrates theproposal: Assume that the employee hasworked 90 hours and has expenses of$1,000. Assume his hourly rate is $100per hour. Assume that the lawyer1 hasworked 75 hours, that his hourly rate is$200 per hour, and that he has incurred$5,000 in expenses. These hours are notspent by either the employee or thelawyer on just one case, but on a series ofcases. One of these cases settles, result-ing in fees of $100,000. The employeewould be paid $10,000 ($1,000 inexpenses + 90 hours × $100). The lawyerwould be paid $20,000 ($5,000 inexpenses + 75 hours × $200). That wouldleave $70,000 in fees. These fees wouldbe divided based on the respective“investments” of the employee and thelawyer or at a ratio of $10,000 to $20,000or 1 to 2. Thus, of the remaining $70,000,the employee would receive $23,333, andthe lawyer would receive $46,667. If feesfor the same hours and expenses wereonly $21,000, the employee wouldreceive $7,000, the lawyer would receive$14,000, and the uncompensated hoursand expenses ($3,000 and $6,000 respec-tively) would be carried over and addedto future hours and expenses until anoth-er fee was received. That fee would thenbe divided using the ratio of hours timeshourly rate plus expenses invested as ofthat time, which might differ from thefirst ratio. If no more fees were earned,there would be no compensation for thesehours and expenses.

The inquiry is whether this compensa-tion system satisfies the requirement ofRule 5.4(a)(3), which is one of the excep-tions to the prohibition on a lawyer or lawfirm sharing legal fees with a nonlawyer.

A lawyer or law firm may include non-lawyer employees in a compensation . . .plan, even though the plan is based inwhole or in part on a profit-sharingarrangement.

If this proposed compensation systemdoes not fall within this exception, theinquirer asks whether, pursuant to Rule

5.4(b), the firm and the employee couldenter into a joint venture arrangement.The employee would be a principal ofand have a financial interest in the jointventure, which would represent the plain-tiffs in this series of class actions. Weresuch an organization formed, could it usethe proposed compensation system?

Discussion

As this inquiry illustrates, the linebetween the prohibited sharing of legalfees with a nonlawyer and a permissiblecompensation plan based on profit-shar-ing is not clearly demarcated. This is sobecause a law firm’s profits result almostentirely from its fees. In a sense, evenpaying nonlawyer employees a salarycould be viewed as a sharing of fees, sincefees are the firm’s source of revenue.

Previous Committee Opinions

Comment [1] to Rule 5.4 provides,without further elaboration, that the ruleis “to protect the lawyer’s professionalindependence of judgment.” Presumably,the notion is that a nonlawyer with astake in the outcome might influence thehandling of the case, for instance by pres-suring the lawyer either to settle faster orto hold out for more, based on the non-lawyer’s financial interest. Comment[10] says, however, that when a non-lawyer becomes a partner or principal ina law firm, as permitted by Rule 5.4(b),he or she may share in the fees.

In Opinion 233 (1993) this Committeedescribed two historical motivations forprohibiting fee-sharing with nonlawyersin addition to preserving independentprofessional judgment: (1) preventing theunauthorized practice of law and (2) pre-serving client confidences. It is notimmediately apparent how fee-sharingwould threaten client confidences, atleast in the context of this inquiry. Itwould appear that the employee wouldhave the same job and presumably thesame access to client confidences regard-less of how he is paid. Nonlawyer expo-sure to client confidences by consultants,expert witnesses, secretaries, paralegals,and law clerks is, of course, common. Weare not sure that preventing unauthorizedpractice is conceptually different frompreserving professional independence.Both reasons add up to discouraging non-lawyers from influencing or making deci-sions about the practice of law, whichshould be reserved for lawyers. Arguably,if the employee had a more direct stake inthe outcome of the class action cases, he

1 For simplicity, assume only one lawyer in thefirm works on these cases.

250 THE DISTRICT OF COLUMBIA BAR April 2004

might be tempted to interfere improperlyin those cases. But if the law firm met therequirements set out in Rule 5.4(b) foradmitting nonlawyers to the firm as part-ners (particularly assuring that they com-ply with the Rules of ProfessionalConduct), the threat to independent pro-fessional judgment or of unauthorizedpractice does not seem appreciablygreater than in the case of a nonlawyerpartner.

Some of this Committee’s opinions,issued after Rule 5.4 was adopted, havetaken a liberal approach to what might becalled fee-sharing. Opinion 298 (2000)said that paying a collection agency apercentage of collections does not violatethe prohibition against fee-splitting.Opinion 307 (2001) said that a firm maypay one percent of its fees to a govern-ment agency for referring a case. Thisreferral fee clearly involved fee-splittingwith a nonlawyer, but we said it was notthe “evil” that the rule was designed toprevent. The aforementioned Opinion233 permitted the sharing of a “successfee” with an independent consulting firm,provided that the client consented inadvance. This “success fee,” while clear-ly contingent on the outcome, was notclearly defined, so we do not know if itwas to be fixed or to be designated as apercentage of the amount of the recovery.In fact, it is not clear from the Opinionwhether the firm represented only plain-tiffs, so the success fee might be trig-gered by a successful defense of a case.2

We must confront, however, Opinion286 (1998). That opinion concernedreferral fees to nonlawyers. The Commit-tee thought that such fees were prohibit-ed if contingent on the amount ofrecovery because such a payment is ineffect paying some of the specific pro-ceeds of a representation to a nonlawyer.If the referral fee were not contingent, ifit were fixed and paid regardless of suc-cess, we said it would not be a division offees and would be permissible. This dis-tinction has the advantage of drawingwhat appears to be a clear line. If the non-lawyer is paid a flat fee, regardless of

outcome, he/she is unlikely to pressurethe lawyer as to how to handle the case orcross over the line of actually practicinglaw. Still it is hard to reconcile this resultwith paying a consulting firm, which willpresumably participate in the case, unlikethe referring party, a fee contingent onsuccess, as long as the client grantsadvance approval.

Other Jurisdictions

The opinions of other jurisdictionsweigh against the inquirer’s proposal3.These opinions generally stand for theproposition that paying a percentage offirm net profits to nonlawyer employeesis permissible, whereas paying a percent-age of a fee in an identifiable case orseries of cases is not. The inquirer refer-enced five opinions that he believed sup-ported his proposed compensationsystem. We discuss each below.

(1) The Philadelphia Bar AssociationProfessional Guidance Committeeendorsed the payment of a percentagebonus to a nonlawyer employee if collec-tions exceeded a predetermined figure,provided that “the bonus is not tied to orcontingent on the payment of a fee froma particular case or specific class of casesrelating to a particular client or debtor.”Opinion 2001-7 (2001).

(2) The Utah State Bar Ethics Adviso-ry Opinion Committee approved the pay-ment to a non-employee paralegal,provided that the paralegal’s compensa-tion is independent of the lawyer’s com-pensation by the client. Employeeparalegals may be compensated basedupon a percentage of gross or net income,provided compensation is not tied to spe-cific fees from a particular case. UT Eth.Op. 02-07, 2002 WL 31079593 (Utah St.Bar).

(3) The New York State Bar Associa-tion Committee on Professional Ethicswould prohibit paying an employee apercentage of a fee for cases that theemployee referred. It would permit pay-ment of a percentage of the firm’s profits.NY Eth. Op. 733, 2000 WL 33347719(N.Y. St. Bar Assn. Comm. Prof. Eth.).

(4) The South Carolina Ethics Advi-sory Committee approved a bonus sys-tem for paralegals based on a percentageof the paralegal’s billings to the clients,

as long as the percentage is not tied to aparticular fee. SC Adv. Op. 97-02, 1997WL 582907 S.C. Bar Eth. Adv. Comm.).

(5) The Illinois State Bar Associationwas ambiguous. A lawyer had a substan-tial collections practice, mainly from asingle collection agency. He segregatedhis collections practice from the rest ofhis practice and determined that prac-tice’s net income on a monthly basis. Hepaid an employee a set percentage of thenet monthly profit from the collectionspractice. The Illinois Committee foundthis “profit-sharing arrangement wouldbe proper provided sharing is based on apercentage of overall firm profit and isnot tied to fees in a particular case.” IL.Adv. Op. 89-05, 1989 WL 550785 (Ill. St.Bar Assn.). This opinion’s ambiguityarises out of the fact that the employeeapparently would not share in thelawyer’s total profit, but in the profitfrom the collections practice only.Arguably, our inquirer wants to do some-thing similar: isolate a part of his firm’spractice and pay the employee a percent-age of the profits from that part of thepractice. The difference, as we see it, isthat the collections practice presumablywould have a high volume of cases, noneof which individually would be likely tohave a significant effect on the collec-tions profits.4 The class action cases withwhich the inquirer is concerned would befew in number and might result in sub-stantial fees, such that one successfulresult could have a major impact on theprofitability of that part of the practice.

In addition to the Illinois opinion, wehave found one other opinion that per-mits a nonlawyer to be compensated by apercentage of a subset of a law firm’sprofits, as opposed to its total profits. MIEth. Op. RI-143 (1992) approved pay-ment of a percentage of the net profitsfrom a law firm’s sports and entertain-ment practice area to a legal assistantwho worked in that practice area. TheMichigan committee had earlierapproved paying a nonlawyer employee abonus calculated on a lawyer’s gross oradjusted gross income, but not tied to theemployee’s efforts to solicit clients. Thecommittee did not think that basing theemployee’s compensation on the netprofits of a practice area, rather than thenet profits of the entire firm, jeopardizeda lawyer’s exercise of professional judg-ment. It stated that the result might bedifferent if the compensation plan were

4 The assumption is based on the typical natureof a collections practice. The Illinois opinion doesnot address this point.

3 Currently no U.S. jurisdiction other than thisone permits nonlawyers to participate as partners orprincipals in law firms. The precedent from otherjurisdictions reflects a more strict prohibition onthe sharing of fees with nonlawyers, and thus itsrelevance is lessened somewhat.

2 Comment [8] to Rule 3.4 endorses the paymentof a contingent fee to an expert witness, providedthat the fee is not a percentage of the recovery. Thismay not be fee-splitting since the expert would pre-sumably be paid from the client’s share of the recov-ery. An expert witness may not have muchopportunity to interfere with the lawyer’s profes-sional independence given the witness’s limitedrole. It was important to the Committee’s analysis inOpinion 233 that the same economic result couldhave been achieved had the client contracted withthe consulting firm to pay a success fee directlyrather than the fee flowing through the law firm.

April 2004 THE DISTRICT OF COLUMBIA BAR 251

based on the fees generated from a par-ticular case or a particular client. Like theIllinois opinion, this opinion is cryptic,but we assume that the sports and enter-tainment practice of the law firm wasextensive enough so that compensationwas not tied to a handful of cases orclients, which is not the case with theproposal we confront.

Moreover, all other opinions and casesthat we have found permit profit-sharingwith nonlawyer employees only as longas it is tied to the firm’s overall profitsand not to receipt of particular fees. ABAInformal Eth. Ops. 1440 (1979) and 1519(1986); Trotter v. Nelson, 684 N.E. 2d1150 (Ind. 1997) (profit-sharing planmay not be tied to a particular fee); StateBar of Texas v. Faubion, 821 S.W. 2d 203(Tex. 1991) (shared fee with a nonlawyerprohibited if based on a particular case);In re Anonymous Member of the SouthCarolina Bar, 367 S.E. 2d 17 (S.C. 1988)(compensation plan for nonlawyers per-missible based on a percentage of profits,but not if directly related to percentage offees generated in individual case); FLEth. Op. 02-1 (2002) (nonlawyer assis-tant’s bonus must be for extraordinaryefforts and cannot be based upon percent-age of fees generated by the assistant);KS Eth. Op. 95-09 (1995) (may sharefees with collection firm, but may notbase compensation on collection firm’scollections); CT Eth. Op. 93-1 (1993)(nonlawyer employees can be paid abonus based on firm profits as long asthey do not make professional decisionsfor the firm); NC Eth. Op. RPC 147(1993) (cannot pay to legal assistantbonus based on income from assistant’sreal estate closings).

Prohibition on Sharing Fees froma Distinct Set of Cases

Although blurred somewhat by thepast opinions of this Committee, thereemerges a prohibition on splitting feeswith a nonlawyer employee on a contin-gent basis arising out of a case or a cate-gory of cases, at least unless the clientapproves in advance (an impracticalityhere). This rule and its exceptions flowfrom precedent, but they may not beentirely logical. How does advance clientapproval guarantee the lawyer’s inde-pendence, for example? Money is fungi-ble, and every employee is going to bepaid out of a law firm’s revenues, whichare its fees. If it is a firm’s practice to paybonuses tied to firm profitability, eachemployee has an incentive to influencethe outcome of significant cases, particu-

larly in small firms where such casescould have a major effect on profitability.In fact, even if a firm has no profit-shar-ing program, a nonlawyer has someincentive to affect the outcome of casesbecause she knows if the firm does notmake a profit, it cannot afford to employher. Nonlawyer employees or employeessharing in fees on a contingent basiswould seem to pose less of a threat toindependence of professional judgmentthan permitting a nonlawyer to be a part-ner in a law firm and be compensated likemost partners based on a percentage ofprofit, particularly in a small firm whereone case can have a major effect on prof-itability.

If we accept Opinion 286’s distinctionbetween bonuses contingent on the feesfrom a specific case or series of relatedcases, as opposed to bonuses contingenton overall profitability, we must concludethat the inquirer’s proposal would violateRule 5.4(a). The inquirer suggests that hisproposal is not tied to a specific referral,client, or fee, but rather to revenue frompooled cases. We do not see this distinc-tion as meaningful. If the underlying pol-icy is to diminish the incentive for thenonlawyer to interfere with the lawyer’spractice, tying the compensation to asmall, identifiable set of related cases isno different than tying the compensationto a single case.5

Establishing a Joint Venture Organization

If Rule 5.4(a) prohibits the proposedcompensation system, the inquirer askswhether the firm can enter into a similarcompensation arrangement with the con-sultant if, rather than hire the consultantas an employee, the firm and the non-lawyer were to form a joint ventureorganization pursuant to Rule 5.4(b).

Rule 5.4(b) providesA lawyer may practice law in a partner-ship or other form of organization inwhich a financial interest is held or man-agerial authority is exercised by an indi-vidual nonlawyer who performsprofessional services which assist theorganization in providing legal servicesto clients, but only if:

1. The partnership or organization hasas its sole purpose providing legalservices to clients;

2. All persons having such managerialauthority or holding a financialinterest undertake to abide by theseRules of Professional Conduct;

3. The lawyers who have a financialinterest or managerial authority inthe partnership or organizationundertake to be responsible for thenonlawyer participants to the sameextent as if nonlawyer participantswere lawyers under Rule 5.1;6

4. The foregoing conditions are setforth in writing.

From the description the inquirer has pro-vided, we assume that the employee “per-forms professional services which[would] assist the organization in provid-ing legal services to clients.” Rule5.4(a)(4) provides, “Sharing of fees ispermitted in a partnership or other formof organization which meets the require-ments of paragraph (b).”

The District of Columbia Court ofAppeals, which governs the D.C. Bar, hasdetermined that lawyers and nonlawyersshould be permitted to form a partnershipor some other form of business venture.This reflects a judgment that clients canbe better served when lawyers and otherprofessionals combine to provide profes-sional services to the public. See D.C.Rule 5.4, comments [3], [4], and [7]. OurCourt of Appeals has decided that so longas the principals of these business unitsadhere to the Rules of Professional Con-duct, such ventures are permissible.

We conclude, therefore, that formingsuch an organization is permissible underRule 5.4(b). In reaching this conclusion,we recognize that it would clearly be per-missible under Rule 5.4(b) for the lawfirm to admit the consultant as a partner.Partners are compensated in a myriad ofways, and compensation could be basedon the success of the cases on which thepartner/consultant works. If the compen-sation system could be effected in thisfashion, we see no impediment to theconsultant and lawyers entering into theproposed joint venture arrangement. Wetake comfort from Rule 5.4(b)’s require-ment that nonlawyer partners adhere tothe Rules of Professional Conduct andthat their lawyer partners are responsiblefor seeing that they do. Because the caseson which the consultant/partner would

6 Rule 5.1 sets forth the responsibilities of apartner or supervisory lawyer to make reasonableefforts to ensure that the lawyers she supervises orpractices with conform to the Rules of ProfessionalConduct.

5 We do not mean in any way to suggest thatnonlawyer employees may not be paid a bonusbecause of exceptional performance or that a bonusor other compensation may not be tied to firm prof-itability. Many other jurisdictions have approvedsuch arrangements and found them not to violateRule 5.4, as long as the compensation was not tiedto the fees earned from a specific case or set ofcases.

252 THE DISTRICT OF COLUMBIA BAR April 2004

work are class actions, and because allmembers of the class are unknown, someof the joint venture’s “clients” will notknow that a nonlawyer is a principal inthe joint venture. This also would be thecase if a law firm with a nonlawyer part-ner wants to bring a class action, and thejoint venture would have to adhere to thevarious special rules that govern classactions and protect class members.

We point out, however, that the organ-ization must adhere to the restrictions setout in Rule 5.4(b) as well as other restric-tions set out in the Rules and elsewhere.For example, Rule 7.5(d) would requireclients to be informed with claritywhether they were being represented bythe law firm or by the joint ventureorganization, which would have to have adifferent names. These two entitieswould have to be separate entities in fact.Efforts would have to be made to protectthe client secrets of the law firm from themembers of the joint venture organiza-tion who were not firm members. Manyof the considerations set forth in ourOpinion No. 303, which concern thesharing of office space by unaffiliatedlawyers, would apply. These wouldinclude separate letterhead, separate fil-ing systems, appropriate signage if thesame offices are utilized by both entities,proper telephone greetings by the recep-tionists, restrictions on access to comput-erized records, and the like.

We also believe that there would besome substantial practical barriers to theformation of such a joint venture organi-zation unless the class action cases wereall brought in the District of Columbia.No other U.S. jurisdiction permitslawyers and nonlawyers to practicetogether in this fashion. In fact, a memberof the Virginia bar, who practices in aDistrict of Columbia law firm thatincludes a nonlawyer as a partner, appar-ently may not engage in the practice oflaw in Virginia. VA Eth. Op. 1584 (1994).Were this joint venture organization tolitigate any of these class actions in juris-dictions other than the District of Colum-bia, it might well face a claim that underthe rules of the forum jurisdiction, it hadentered into an unethical fee arrange-ment. See Rule 8.5(b) (choice of law ruleapplies disciplinary rules of foreign juris-diction to conduct in connection withjudicial proceedings in that jurisdiction.)In short, we believe that these practicallimitations, plus the requirement that sep-arate firms adhere to the appropriate for-malities to operate in fact separately, maymean that such arrangements will be ofutility only in limited circumstances.

Nevertheless, our Rules permit suchorganizations, and we see little distinc-tion between forming such a joint ventureorganization with a consultant as a prin-cipal and the formation of a small publicutilities law practice with an economistas principal. In each case the nonlawyershares the fees, has a say in the organiza-tional governance, and may be involvedin every case. Rule 5.4 expressly allowsthe latter structure, and Comment 7expressly endorses an economist’s join-ing a public utility practice. If our Rulesallow one, they should allow both. Sowhile the compensation plan would vio-late Rule 5.4(a) if implemented by a lawfirm, it is permitted by Rule 5.4(b) if thefirm and the nonlawyer employee form ajoint venture organization, provided thatthey adhere to the restrictions that theRules impose on such an organization.

Adopted: 16 February 2004Published 17 February 2004

Opinion No. 323

Misrepresentation by an AttorneyEmployed by a Government Agencyas Part of Official Duties

● Lawyers employed by governmentagencies who act in a non-representation-al official capacity in a manner they rea-sonably believe to be authorized by lawdo not violate Rule 8.4 if, in the course oftheir employment, they make misrepre-sentations that are reasonably intended tofurther the conduct of their officialduties.

Applicable Rules● Rule 8.4 (Misconduct)

Inquiry

The Committee has received aninquiry on a matter relating to the obliga-tion of an attorney under Rule 8.4(c). Weare asked to determine whether attorneyswho are employed by a national intelli-gence agency violate the Rules of Profes-sional Conduct if they engage in fraud,deceit, or misrepresentation in the courseof their non-representational officialduties.

Discussion

Rule 8.4(c) of the Rules of Profession-al Responsibility makes it professionalmisconduct for a lawyer to “engage inconduct involving fraud, deceit, or mis-

representation.” This prohibition appliesto attorneys in whatever capacity they areacting—it is not limited to conductoccurring during the representation of aclient and is, therefore, facially applica-ble to the conduct of attorneys in a non-representational context. See ABAFormal Op. No. 336 (1974) (lawyer mustcomply with applicable disciplinary rulesat all times).1

The prohibition on misrepresentationwould, therefore, facially apply to attor-neys conducting certain activities that arepart of their official duties as officers oremployees of the United States when theattorneys are employed in an intelligenceor national security capacity. Thus,though the inquirer asked specificallyabout misrepresentations made by intelli-gence officers acting in their officialcapacity as authorized by law, the princi-ples enunciated in this opinion are equal-ly applicable to other governmentalofficers who are attorneys and whoseduties require the making of misrepresen-tations as authorized by law as part oftheir official duties.

Such employees may, on occasion, berequired to act deceitfully in the conductof their official duties on behalf of theUnited States, as authorized by law. It iseasy, for example, to imagine attorneyswhose work for the CIA might requiretheir personal clandestine work and falsi-fication of their identity, employment sta-tus, or fidelity to the United States. Weare confronted with the question whethersuch misrepresentations run afoul of Rule8.4’s anti-deceit prohibition.2

For three reasons, we conclude thatRule 8.4 does not prohibit conduct of thenature described.

First, our conclusion is premised onour understanding of the purposes forwhich Rule 8.4 was adopted. The prohi-

1 This opinion applies only to the conduct ofattorneys acting in a non-representational capacity.It does not address potentially applicable require-ments under Rule 4.1(communication with clients),or Rule 4.3 (dealing, on behalf of clients, withunrepresented parties) which, inter alia, prohibitsattorneys from making a false statement of materi-al fact to a third party “in the course of representinga client.”

2 Rule 8.4(c) prohibits a lawyer from engagingin conduct “involving dishonesty, fraud, deceit, ormisrepresentation.” And “fraud” is, of course, sep-arately defined by the Rules. See D.C. Rules ofProf. Conduct, Terminology (defining “fraud” and“fraudulent” as “conduct having a purpose todeceive”). For convenience sake, we refer to Rule8.4(c) as the anti-deceit provision, while recogniz-ing that the scope of the prohibition may dependupon a close analysis of the meaning of each of thefour related prohibitions.

October 2004 THE DISTRICT OF COLUMBIA BAR 253

bition against engaging in conduct“involving dishonesty, fraud, deceit, ormisrepresentation” applies, in our view,only to conduct that calls into question alawyer’s suitability to practice law. TheComments to Rule 8.4 discuss why thecurrent version discarded earlier refer-ences to a prohibition on conduct involv-ing “moral turpitude” (as the conduct thathad been proscribed was referred to inour former Code of Professional Respon-sibility). Comment [1] explains that thissomewhat archaic formulation,

can be construed to include offensesconcerning some matters of personalmorality, such as adultery and compara-ble offenses, that have no specific con-nection to fitness for the practice of law.Although a lawyer is personally answer-able to the entire criminal law, a lawyershould be professionally answerableonly for offenses that indicate lack ofthose characteristics relevant to lawpractice.

D.C. Rule 8.4, Comment [1]; see alsoIn re White, 815 P.2d 1257 (Or. 1991)(concluding that Rule applies to conductin violation of criminal law if it “reflectsadversely on the lawyer’s honesty, trust-worthiness or fitness as a lawyer in otherrespects”).

Thus, in rejecting the formulation of“moral turpitude” and substituting thecurrent anti-deceit formulation, the Dis-trict of Columbia Court of Appeals hasindicated its intention to limit the scopeof Rule 8.4 to conduct which indicatesthat an attorney lacks the characterrequired for bar membership. As theComments elaborate, this may include“violence, dishonesty, breach of trust, orserious interference with the administra-tion of justice.” D.C. Rule 8.4, Comment[1].3 But, clearly, it does not encompassall acts of deceit—for example, a lawyeris not to be disciplined professionally forcommitting adultery, or lying about thelawyer’s availability for a social engage-ment.

Given this understanding of Rule 8.4,in our judgment the category of conductproscribed by the Rule does not includemisrepresentations made in the course ofofficial conduct as an employee of anagency of the United States if the attor-ney reasonably believes that the conductin question is authorized by law. An attor-

ney’s professional competence and abili-ty are not called into question by servicein our intelligence or national securityagencies in conformance with legalauthorization, nor is it called into ques-tion by the use of effective covert meansto achieve legitimate national securitygoals. Cf. Apple Corps Ltd. v. Interna-tional Collectors Society, 15 F. Supp. 2d456, 476 (D.N.J. 1998) (concluding thatinvestigator’s and tester’s misrepresenta-tion of identity is not a misrepresentationof “such gravity as to raise questions as toa person’s fitness to be a lawyer”). As aconsequence, we do not believe that Rule8.4(c) is intended to reach lawful, author-ized official conduct, even if there is adeceitful component to that conduct.

Second, our conclusion in this regardis buttressed by an analogous provisionof the Rules and its construction withinthis jurisdiction. Rule 4.2 prohibits cer-tain communications between a lawyerand an opposing party who is representedby counsel. This jurisdiction has con-strued the Rule to permit lawful lawenforcement activity. Thus, our Com-mentary says that:

This Rule is not intended to enlarge orrestrict the law enforcement activities ofthe United States or the District ofColumbia which are authorized and per-missible under the Constitution and thelaws of the United States or the Districtof Columbia. The “authorized by law”proviso to Rule 4.2(a) is intended to per-mit government conduct that is validunder this law.

Rule 4.2, Comment [8].4The Virginia Standing Committee on

Legal Ethics recently recognized the par-allel between law enforcement and intel-ligence activity in an opinion that isconsistent with our views. In Va. LegalEthics Opinion 1738 (2000), the VirginiaStanding Committee considered whetherthe ethical rule prohibiting non-consen-sual tape recording then in effect in Vir-ginia applied to law enforcementundercover activities. The VirginiaStanding Committee concluded that it didnot. In Va. Legal Ethics Opinion 1765(2003), the Virginia Standing Committeethen considered whether the policies ani-mating the exception for law enforce-ment undercover activities expressed in

Opinion 1738 also authorized the use ofnon-consensual tape recording and othercovert activities by attorneys working fora federal intelligence agency. Reasoningby analogy to its earlier decision con-cerning law enforcement undercoveractivities, the Committee agreed thatcovert intelligence activities also serve“important and judicially-sanctionedsocial policies.” Accordingly Opinion1765 concluded that “when an attorneyemployed by the federal government useslawful methods such as the use of ‘aliasidentities’ and non-consensual tape-recording, as part of his intelligence orcovert activities, those methods cannot beseen as reflecting adversely on his fitnessto practice law; therefore such conductwill not violate the prohibition in Rule8.4(c).” That reasoning is equally persua-sive to this Committee.

To be sure, Rule 8.4 does not have an“authorized by law” proviso, like that inRule 4.2, and the absence of such a pro-vision authorizing deceit in the intelli-gence, national security, or other foreignrepresentational context might be con-strued as indicating that such conduct isnot permitted. Nonetheless, we agreewith Virginia that the treatment of lawenforcement activity is instructive of theproper treatment of intelligence activity.A better construction is to view Comment[8] to Rule 4.2 as expressing a generalapproval of lawful undercover activity bygovernment agents and the failure tomention the myriad ways in which theissue might arise simply reflects thedrafters’ focus on the more immediateissue of law enforcement activity thatwas before them. We do not think that theCourt of Appeals intended to authorizelegitimate law enforcement undercoveractivity while proscribing covert activityin aid of our national security; we wouldnot impute so illogical an intent to thedrafters absent far stronger evidence.

Third, “[t]he Rules of ProfessionalConduct are rules of reason. They shouldbe interpreted with reference to the pur-poses of legal representation and of thelaw itself.” D.C. Rules, Scope, Comment[1]. Some activities conducted on behalfof the United States necessarily involvecircumstances where disclosure of one’sidentity or purpose would be inappropri-ate—and, indeed, potentially dangerous.We do not think that the Rules of Profes-sional Conduct require lawyers to choosebetween their personal safety or compli-ance with the law, on the one hand,5 and

4 Some other jurisdictions have construed thisprovision to preclude law enforcement agents, act-ing at the direction of a lawyer, from conductingcovert, undercover activity against individuals whoare represented by counsel. Cf. In re Gatti, 8 P.3d966 (Or. 2000), overruled, Or. DR 1-102(D) & Or.Formal Op. 2003-173.

3 In March 2003, the Virginia Supreme Courtmade this connection explicit by amending the Vir-ginia version of Rule 8.4(c) to prohibit “dishonesty,fraud, deceit or misrepresentation which reflectsadversely on a lawyer’s fitness to practice law.” Va.R. Prof. Cond. 8.4(c).

5 In some circumstances, federal law affirma-tively prohibits disclosure of information relating

maintenance of their bar licenses, on theother. See Utah State Bar Ethics Adviso-ry Committee Op. No. 02-05 (2002)(relying on “rule of reasons” provision toconclude that government attorneys’“lawful participation in a lawful govern-ment operation” does not violate Rule 8.4if deceit is “required in the successfulfurtherance” of the undercover or covertoperation).

For these several reasons we are con-vinced that the anti-deceit provisions ofRule 8.4 do not prohibit attorneys frommisrepresenting their identity, employ-ment or even allegiance to the UnitedStates if such misrepresentations aremade in support of covert activity onbehalf of the United States and are dulyauthorized by law.6

Finally, we emphasize the narrowscope of this opinion. It applies only tomisrepresentations made in the course ofofficial conduct when the employee(while acting in a non-representationalcapacity, see supra n.1), reasonablybelieves that applicable law authorizesthe misrepresentations. It is not blanketpermission for an attorneys employed bygovernment agencies to misrepresentthemselves. Nor does it authorize misrep-resentation when a countervailing legalduty to give truthful answers applies.Thus, for example, false testimony underoath in a United States court or before theCongress is prohibited, see In re Abrams,689 A.2d 6 (D.C. 1997) (en banc),notwithstanding any countervailing intel-ligence or national security justification.And, of course, this opinion does notauthorize deceit for non-official reasons,or where an attorney could not, objec-tively, have a reasonable belief that appli-cable law authorizes the actions inquestion.

With that limitation, our conclusion isas follows: Lawyers employed by gov-ernment agencies who act in a non-repre-sentational official capacity in a mannerthey reasonably believe to be authorizedby law do not violate Rule 8.4 if, in thecourse of their employment, they make

misrepresentations that are reasonablyintended to further the conduct of theirofficial duties.

Inquiry No.: 01-11-25Adopted: 29 March 2004Published: 30 March 2004

Opinion 324

Disclosure of Deceased Client’s Files

● When a spouse who is executor of adeceased spouse’s estate requests that thedeceased spouse’s former attorney turnover information obtained in the courseof the professional relationship betweenthe deceased spouse and the former attor-ney, the former attorney may providesuch information to the spouse/executor,if (1) the attorney concludes that theinformation is not a confidence or secret,or, (2) if it is a confidence or secret, theattorney has reasonable grounds forbelieving that release of the informationis impliedly authorized in furthering theinterests of the former client in settlingher estate. Where these conditions are notmet, the deceased spouse’s former attor-ney should seek instructions from a courtas to the disposition of materials reflect-ing confidences or secrets obtained in thecourse of the professional relationshipwith the former client. In the absence ofsuch a court order, the attorney shoulddispose of the materials according to theguidance in Opinion 283.

Applicable Rule● Rule 1.6 (Confidentiality)

Inquiry

We have received a request for anopinion concerning disposition of docu-ments in the possession of an attorneyfollowing a client’s death. The inquirersare members of a law firm who representa husband who is executor and sole heirof his deceased wife’s estate. The hus-band has asked that his wife’s formerattorney1 turn over to the estate all docu-ments and files his deceased wife fur-nished to her attorney, as well as alldocuments and files the attorney generat-ed or retained in connection with the rep-resentation of the wife. These documentsand files may be relevant to a legal claimthe estate may have against third parties.

The inquirers state that the wife’s attor-ney has expressed concerns that releasingthe requested documents and files mightviolate “the attorney-client or attorneywork product privileges” and that, “dueto the nature of the representation of thedeceased spouse,” the materials “consti-tute secrets [sic] and are protected byattorney-client privilege.”

The inquirers ask three questions:First, what should become of the docu-ments and files the deceased wife fur-nished to her attorney? Second, whatshould become of the documents andfiles the attorney has generated andretained in connection with her formerrepresentation of the deceased wife?Third, may this attorney speak with theformer client’s husband, who is theexecutor and sole heir to the estate, with-out violating “the attorney-client or attor-ney work product privileges”?

Although the inquirers cast their ques-tions in the framework of privilege law,our answers are confined to their profes-sional responsibilities under the D.C.Rules of Professional Responsibility(“D.C. Rules”), because our charter ordi-narily does not extend to questions ofsubstantive law beyond interpretation ofthe Rules. We thus offer this analysis ofthe scope of an attorney’s continuingduties of confidentiality to a deceasedclient under D.C. Rule 1.6.

Discussion

D.C. Rule 1.6(a) provides that alawyer may not reveal “a confidence orsecret of the lawyer’s client,” exceptunder certain specified circumstances.Rule 1.6(b) defines a “confidence” as“information protected by the attorney-client privilege under applicable law,”and “secret” as any “other informationgained in the professional relationshipthat the client has requested be held invi-olate, or the disclosure of which wouldbe embarrassing, or would be likely to bedetrimental, to the client.” Thus, unlikeABA Model Rule 1.6 and the rules ofmany other jurisdictions, D.C. Rule 1.6does not define as confidential all infor-mation relating to legal representation.2Material that is not privileged underapplicable evidentiary law and does not

254 THE DISTRICT OF COLUMBIA BAR October 2004

to the identity of covert agents, for example. See,e.g., 50 U.S.C. § 421.

6 This Committee lacks the expertise to precise-ly identify, for example, which covert activities areauthorized by law. Moreover, such an enumerationwould exceed our charter, which ordinarily limitsour opinions to interpretations of the District ofColumbia Rules of Professional Conduct. Weemphasize, however, that for conduct to comewithin the safe-harbor of this opinion the lawyermust reasonably believe that the conduct in ques-tion was both authorized by law and reasonablyintended to further the attorney’s official duties.

1 The term “former attorney” refers to the factthat the client is deceased. We do not intend toimply that the attorney-client relationship terminat-ed for some other reason prior to the client’s death.

2 The deliberate decision to incorporate this dif-ference from ABA Model Rule 1.6 is reflected inthe legislative history of D.C. Rule 1.6. See Pro-posed Rules of Professional Conduct and RelatedComments, Showing the Language Proposed bythe American Bar Association, Changes Recom-mended by the District of Columbia Bar ModelRules of Professional Conduct Committee, and

meet the definition of a “secret” underD.C. Rule 1.6(b) may be disclosed. SeeD.C. Rule 1.6 Comment [6].

The “fundamental principle” underly-ing D.C. Rule 1.6 is that the lawyershould hold inviolate client “secrets andconfidences” so that the client will be“encouraged to communicate fully andfrankly with the lawyer even as to embar-rassing or legally damaging subject mat-ter.” D.C. Rule 1.6 Comment [4]. Thisduty of confidentiality applies to infor-mation in any form,3 and continues afterthe termination of the lawyer’s employ-ment. D.C. Rule 1.6(f). The “duty of con-fidentiality continues as long as thelawyer possesses confidential clientinformation” and extends “beyond theend of the representation and beyond thedeath of the client.” Restatement of theLaw Governing Lawyers § 60 comment e(2000).

The attorney-client privilege also usu-ally extends beyond the death of a client.See, e.g., Swidler & Berlin v. UnitedStates, 524 U.S. 399 (1998) (holding thatattorney-client privilege extends beyondthe death of a client and citing numerouscases in agreement from a wide variety ofjurisdictions.) As the Court in Swidlerdiscussed, the testamentary exception tothe general rule that attorney-client privi-lege extends beyond a client’s death maypermit disclosure of privileged informa-tion in the context of settling a deceasedclient’s estate, because “the privilege,which normally protects the client’sinterest, could be impliedly waived inorder to fulfill the client’s testamentaryintent.” Id. at 405 (citations omitted). Aspouse may waive a deceased formerclient’s attorney-client privilege in othercircumstances as well, such as where a

statute authorizes or requires this step.See, e.g., State v. Doe, 101 Ohio St. 3d170, 803 N.E.2d 777 (2004) (applying50-year old untested Ohio statute author-izing surviving spouse to waive deceasedspouse’s attorney-client privilege torequire an attorney to testify about what adeceased client told her in a missing-child case).

In short, whether the materials at issuein the inquirers’ situation can be revealedto the inquirers’ client in his capacity asexecutor of his wife’s estate depends onthe nature of the information they con-tain. Revealing the information would beappropriate if it does not constitute a con-fidence or secret under the definitions inD.C. Rule 1.6(a). Even if the informationis covered by the duty of confidentialityas defined in Rule 1.6, release would beappropriate so long as the attorney hasreasonable grounds for concluding thatrelease of the information is impliedlyauthorized in furthering the formerclient’s interests in settling her estate.The inquirers have told us nothing aboutthe nature of the matter in which the wifesought an attorney’s representation,except that it may be relevant to a legalclaim the estate may wish to pursueagainst third parties. With these limitedfacts we cannot opine on the proper dis-position of the documents and filesretained by the deceased wife’s formerattorney, but do offer a more generalanalysis that we hope will be of help.

In general, the exceptions to D.C. Rule1.6 permit a lawyer to reveal confidencesand secrets when: (i) the “lawyer has rea-sonable grounds for believing that aclient has impliedly authorized disclosureof a confidence or secret in order to carryout the representation,” Rule 1.6(c)(4);(ii) with the client’s consent, after fulldisclosure to the client, Rule 1.6(d)(2); orwhen permitted by the Rules or (iii)“required by law or court order,” Rule1.6(d)(1). Much information an attorneygains in the course of a representation isroutinely disclosed on grounds of impliedauthorization to carry out the representa-tion, as in drafting a complaint, for exam-ple. In the ordinary case, release ofinformation an executor requests wouldbe impliedly authorized under D.C. Rule1.6(d)(4). In some unusual circum-stances, however, an attorney facing thequestion of disclosure of a deceasedclient’s files or other information to aspouse/executor may confront a moredifficult dilemma. An attorney unsurewhether a deceased former client wantedinformation to be disclosed cannot seekthe client’s instructions as contemplated

under D.C. Rule 1.6(d)(1). Instead, theattorney must decide what the client’sinstructions would have been if the attor-ney could have consulted her, and thismay present a close question.

To take a hypothetical example: Imag-ine that a wife’s will states that she wish-es to divide her property equally amongher children. The wife later consultsanother attorney (“second attorney”) andconfides to this second attorney that,prior to her current marriage, she gavebirth to a child about which she has notinformed her current husband, and wish-es to provide for that child in her willwithout disclosing the nature of her rela-tionship to this individual. The secondattorney begins to prepare a new draft ofher will, but the wife unexpectedly diesbefore it is finalized and signed. After thewife’s death, the husband, who is execu-tor of the wife’s estate, asks the secondattorney for information about the repre-sentation. The second attorney mustdecide whether she has information thatis a confidence or a secret. In the exam-ple, the fact of the wife’s prior child isprobably both: the wife told the secondattorney this information in the course ofseeking legal advice, and stated that shedid not want this information disclosed toher husband. But whether the wife wouldwant her wishes to provide for this indi-vidual to be known after her death is amore difficult question. The wifeexpressed to the second attorney her wishthat all of her children be provided for, onthe one hand, but may wish that her hus-band not learn of her prior child, on theother.

The decision about what to do in sucha situation will require the attorney toexercise her best professional judgment.An attorney who reasonably believes thatshe knows what her client would havewanted, on the basis of either what theclient told her or the best available evi-dence of what the client’s instructionswould have been, should carry out herclient’s wishes. The attorney will usuallybe best situated to make this determina-tion. In rare situations, however, theattorney may wish to seek an order fromthe court supervising disposition of theestate and present the materials at issuefor the court’s in camera consideration.

In reaching these recommendations,we are assisted by a number of opinionsfrom other jurisdictions. The DisciplinaryBoard of the Hawaii Supreme Court, forexample, addressed the question of whenan attorney may disclose confidentialinformation concerning a deceased clientin Formal Opinion No. 38 (1999). The

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Changes Recommended by the Board of Governorsof the District of Columbia Bar (unpublished docu-ment dated November 19, 1986), at 41 (deletingABA Model Rule language covering all “informa-tion relating to representation of a client” andinserting D.C. Rule 1.6(b) language defining “con-fidence” and “secret”); id. at 44 (adding same lan-guage to D.C. Rule 1.6 comment [6] ); id. at 50(explaining that D.C. Rule 1.6(a) is substantiallyidentical to ABA Model Code DR 4-101(A), whichdefines “confidence” and “secret”); id. at 52(explaining that the Committee and Board pre-ferred the narrower scope of DR 4-101(A) to theABA’s unexplained change in the scope of ModelRule 1.6).

3 See D.C. Rule 1.6 Comment [6] (“This ethicalprecept, unlike evidentiary privilege, exists withoutregard to the nature or source of the information orthe fact that others share the knowledge”); Restate-ment of the Law Governing Lawyers § 59 commentb (definition of confidential information includesdocuments, files, photographs and other similarmaterials).

Board noted that the duty of confidential-ity is broader than the attorney-clientprivilege and that, although a client’s heiror personal representative may haveauthority to waive the attorney-clientprivilege, the confidentiality protectionunder the Hawaii Rules of ProfessionalConduct may still apply. The Board fur-ther noted that obtaining client consent tosuch a disclosure under the Hawaii ruleswould not be possible once the client wasdeceased. The Board concluded, howev-er, that such disclosure might be implied-ly authorized in order to carry out therepresentation, and that in determiningthe necessity of disclosure of confidentialinformation on this ground the attorneyshould “consider the intentions of theclient.” Thus, if an attorney reasonablydetermines that confidentiality should bewaived in order to effectuate thedeceased client’s estate plan, the attorneywould be both “permitted and obligatedto make such disclosure.” See alsoRestatement of the Law GoverningLawyers § 60 comment I (“the lawyermay reveal confidential client informa-tion to contending heirs or otherclaimants to an interest through adeceased client” if there is “a reasonableprospect that doing so would advance theinterest of the client-decedent”).4

The Philadelphia Ethics Committeerecently considered a situation in whichan inquiring attorney represented a clientwho committed suicide while being treat-ed for mental health problems in a treat-ment facility. Philadelphia Bar Ass’nEthics Op. 2003-11 (2003). The formerclient’s father asked the inquirer forinformation about his son’s death, and theinquirer asked whether PennsylvaniaRule of Professional Conduct 1.6 prohib-ited the inquirer from complying with thefather’s request. The Committee rea-soned that none of the exceptions to Rule1.6 applied, but that the lawyer couldlook to the legal representative of the

client for decisions on the client’sbehalf.5 The Committee concluded that ifthe father was appointed executor of hisson’s estate, he would be authorized toconsent to the disclosure of informationrelating to his son’s representation. TheCommittee cautioned, however, that ifthe attorney were aware that the formerclient would not have consented to therevelation of information, the informa-tion should not be disclosed.

Finally, in Nassau County (N.Y.) Com-mittee on Professional Ethics OpinionNo. 03-4 (2003), the inquirer had repre-sented a woman who sought to file adivorce action against her husband. Theclient told the inquirer that she did notwant to serve papers against her husbandor tell him about her plans until she haddiscussed the matter with her childrenafter they finished their pending collegesemesters. Ten days later, the client diedsuddenly. The client’s husband discov-ered that his wife had sought legal repre-sentation when he found a check stubshowing her payment of the inquirer’sretainer fee, and asked the inquirer foritemized billing information. The NassauCounty Ethics Committee concludedthat, if the information sought revealedthe former client’s confidences or secretsrelated to the inquirer’s representation ofher, the inquirer could not disclose theinformation requested. The Committeenoted that the spouse/executor was thevery person whom the inquirer’s formerclient requested not be informed of herplans to seek a divorce until she had“informed her children, a plan upset byher sudden death,” and that it was unclearwhether the spouse/executor, in request-ing the detailed billing records, was “act-ing to protect the estate and itsbeneficiaries, or to satisfy his own per-sonal interests.” Nassau Op. 03-4 at 2, 5.

The Nassau County Ethics Committeehad several helpful suggestions forlawyers facing similar situations. First,the Committee suggested that the inquir-er determine whether the spouse/executorwould accept the requested itemizedbilling information in a redacted formthat avoided disclosure of his wife’ssecrets and confidences. This course, theCommittee pointed out, could satisfy thespouse/executor’s fiduciary duty to deter-mine the proper amount of the partialrefund of the retainer fee owed the estate.A similar result might be achieved byoffering the written retainer agreement

redacted so as to omit the purpose of thelegal representation. Op. 03-4 at 6. Final-ly, the Committee noted that, if thespouse/executor was not satisfied withsuch offers of redacted documents, theinquirer’s refusal to turn over all of theinformation requested might lead thespouse/executor to seek judiciallyordered disclosure in the probate pro-ceeding or related separate action. Thisdevelopment would require the inquirerto present the relevant facts and profes-sional responsibility issues to a court forits determination, including a possible incamera examination of the inquirer’sunredacted records. If a court ordereddisclosure of the records, the inquirercould either comply with the order, aspermitted under the New York provisionequivalent to D.C. Rule 1.6(d)(2)(A), orseek appellate review if appropriate.

Our prior opinions have said that anattorney must refuse requests for disclo-sure of confidential client informationuntil a court has entered a final judicialorder requiring such disclosure. See D.C.Bar Ethics Op. 214 (1990). We conclud-ed that the attorney need not also pursueappellate review of that order. Id. We fur-ther noted that the attorney must give theclient notice of the order and a reasonableopportunity to seek review of the orderindependently. Id. These are conditionsthat cannot be satisfied when the client isdeceased. Nonetheless, we think the rea-soning of the Nassau Committee is soundon this point, and that, in the general caseof a deceased client, an attorney may dis-close confidential client information oncehe or she has been finally ordered to doso by a court, without necessarily seekingappellate review of the court’s order.D.C. Rule 1.6(d)(2)(A).

Our prior opinions have also offeredguidance to attorneys on handling docu-ments and other materials related to therepresentation of a former client. In D.C.Bar Ethics Opinion 283 (1998), weadvised that lawyers must take care toprotect the confidentiality of the contentsof clients’ closed files. We advised that ina situation in which it was not possible toobtain instructions from the former clientor his legal representative as to what todo with such files, a lawyer who con-cludes that “further retention of a formerclient’s closed files is ‘not reasonablypractical to protect a client’s interests’may destroy the files five years after thetermination of the representation.” Id.

In sum, the proper disposition of thedocuments the wife’s former attorneyretains from the prior representationdepends on the husband/executor’s status

5 Here the Committee turned to Rule 1.14,which deals with a client under a disability, perhapsbecause that Rule would have applied to the formerclient while living.

4 Other ethics committee opinions reaching sim-ilar conclusions include Kansas Bar AssociationProfessional Ethics Advisory Comm. 01-1 (2001)(a lawyer may use or reveal confidential clientinformation or documents to advance a deceasedclient’s interests in the disposition of propertyrights by inheritance, but the transfer of informa-tion or documents should be limited to that neces-sary to defend and prove the rights at issue andshould not contain information that could beadverse to the deceased client); North CarolinaState Bar Ethics Op. 206 (1995) (a lawyer mayreveal a client’s confidential information to the per-sonal representative of the client’s estate, unless thedisclosure of confidential information would beclearly contrary to the goals of the original repre-sentation or would be contrary to the instructions ofthe client to the lawyer prior to the client’s death).

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in relation to the matter handled in theprior representation. If the matter relatesto the husband’s fiduciary duties in han-dling the disposition of the wife’s estate,and if disclosure of the information isimpliedly authorized in order to furtherthe deceased client’s interests as the for-mer attorney can best ascertain them,then the attorney should furnish the mate-rials to the husband/executor. On theother hand, if these conditions are notmet, the wife’s former attorney shouldnot turn over the documents. If the attor-ney reasonably believes that the correctcourse of conduct is uncertain, she shouldseek instructions from a court. If no suchinstructions are forthcoming, the attorneyshould dispose of the documents accord-ing to the guidelines in our Opinion 283.The same analysis applies on the inquir-ers’ question whether the former wife’sattorney may speak to the executor/hus-band. An attorney may disclose adeceased former client’s secrets and con-fidences in any manner, including oralconversation, only if the conditions dis-cussed in this opinion have been met.

Inquiry No. 04-01-02Adopted: 18 May 2004Published: May 2004

Opinion No. 325

Agreement to Distribute Former FirmProfits to Partners From FormerFirm Only as Long as They ContinueTo Practice in new Merged Firm:Rule 5.6(a)

● When a law firm is about to mergewith another firm, its partners agree todistribute profits already earned by theformer firm, but which will be paid in thefuture, only to partners who continue topractice with the post-merger firm. Thisagreement violates Rule 5.6(a) because itcreates a financial disincentive to partnersto leave the merged firm and practice withanother firm. The exception in Rule 5.6(a)for an agreement relating to benefits uponretirement applies only to the type ofretirement typical at the end of a careerand not to all departures from a firm.

Applicable Rule● Rule 5.6(a)

Inquiry

The inquirer poses a question of theinterpretation of Rule 5.6(a) as applied inthe context of law firm mergers. As stat-ed by the inquirer, the facts are these:

1. Factual background

The inquirer was a partner in a LawFirm, which merged with another firm tobecome Merged Law Firm. Before themerger, the Law Firm was owed fees bysome clients for work that had alreadybeen completed. These fee paymentswere to be made over time, but the LawFirm needed to do nothing further to beentitled to them. Anticipating the merger,the partners of Law Firm assigned thefuture right to receive these fees to a newentity, Receivables LLC. Under theagreement of those partners that createdthis LLC, each Law Firm partner wasentitled to a fixed and specifically statedpercentage share of the LLC’s receiv-ables equal to that partner’s share of LawFirm profits. This was called a Manage-ment share. In addition, those partnerswho were regarded as having originatedclient business that led to the receivableswere entitled to a further specificallyenumerated percentage of the receiv-ables, called an Originator’s share. Theinquirer was an Originator and thus wasentitled both to a Management share rep-resenting his share of the pre-merger LawFirm’s profits, plus an Originator’s share.Thus, after the merger the LLC receivedsums attributable to Law Firm work donebefore the merger and paid those out tothe partners of the pre-merger Law Firm.

Under the documents creating Receiv-ables LLC, the partners’ rights to receiveManagement and Originator’s shareswere not unconditional. The agreementcreating the LLC provides that if anypartner of the pre-merger Law Firm whois a member of Receivables LLC leavesthe Merged Law Firm before December31 of the year following the year of themerger (a period of two years from theeffective date of the merger), that part-ner’s Management share in ReceivablesLLC ceases at that time—does not vest1in the terminology of the agreement—andthe payments stop, unless the departurewithin that period from the Merged LawFirm is attributable to death, illness, orretirement from the practice of law, inwhich case the payments do not stop withthe departure from the Merged Law Firm.If the partner leaves the Merged LawFirm after two years have elapsed sincethe merger, then the payments continuedespite the departure. In addition, if anypartner who is also an Originator, likeinquirer, leaves the Merged Law Firm at

any time and for any reason, then thatOriginator’s share becomes void and thepayments of the Originator’s share stops.Thus, documents creating ReceivablesLLC condition the right to receive sumsowed to the pre-merger Law Firm in sucha way as to create incentives to partnersof the former Law Firm to continue prac-ticing with the Merged Law Firm.

The inquirer reports that after themerger, the Merged Law Firm decided topursue clients whose interests tended toconflict with those of the clients whomthe inquirer tended to represent. It wasnot possible for inquirer to continue torepresent the clients that were the inquir-er’s traditional client base. The inquirerstates, “At the [Merged Firm’s] direction,I am forced to find a new firm to practicewith.” The departure of the inquirerwould effectively be before the expira-tion of the two-year period, so that depar-ture would result in the loss by theinquirer of all rights to a continuingshare, including both a Membershipshare and an Originator’s share of incomefrom Receivables LLC.

2. The Applicable Rule

Rule 5.6(a) provides that a lawyer maynot “make or participate in making apartnership or employment agreementthat restricts the rights of a lawyer topractice after termination of the relation-ship, except an agreement concerningbenefits on retirement . . . ” While there hasbeen a great deal written about Rule5.6(a) (including our opinions 291, 241,221, and 65 2), we think it useful to dis-cuss its basic framework.

The Rule first bars a lawyer from par-ticipating in the offering or making of apartnership or employment agreementthat “restricts the right of a lawyer topractice after termination of the relation-ship . . .” There is then an exception foragreements “concerning benefits uponretirement . . .” Rule 5.6(a) is “substantial-ly similar” to its predecessor, DR2–108(a) of the Model Code of Profes-sional Responsibility. See the report ofthe District of Columbia Bar ModelRules of Professional Conduct Commit-tee, with the changes recommended bythe Board of Governors, submitted withthe Board’s Petition recommendingadoption the Rules to the D.C. Court ofAppeals, November 1986 at page 210.

Rule 5.6(a) seeks to prevent lawyersfrom entering into agreements that willdiscourage lawyers from moving from1 The term “vest,” while perhaps not entirely

legally accurate, is used in the LLC documents, andfor convenience we will use it here.

2 Opinion 65 interpreted the former DR 2-108(A).

one firm to another. The reason for theRule is that clients may benefit whentheir lawyers (either at the beginning oftheir careers or later) can improve theirwork environment. The D.C. Court ofAppeals has favorably quoted the Com-mittee’s determination in Opinion No.241 that the Rule is a mechanism “to pro-tect the ability of clients to obtainlawyers of their own choosing and toenable lawyers to advance their careers.”Neuman v. Akman, 715 A.2d 127, 131(D.C. 1998). The Committee has morerecently stressed that clients not infre-quently recommend a change of law firmto lawyers, for various reasons, andOpinion No. 273 (1997) requires lawyersto consult with their clients before chang-ing firms precisely because such changesare often important to clients. This prin-ciple of facilitating lawyers’ changes intheir practice environment to benefitclients finds expression elsewhere in ourRules, such as the special provisionsseeking to facilitate the movement oflawyers from firm to firm in Rule 1.10.See Comments [10], [11], and [21] toRule 1.10.3 Such considerations are notunique to the District of Columbia but areshared by other jurisdictions. See 2 Haz-ard & Hodes, The Law of Lawyering §47.4 at 47-5 (3d ed. 2001).

It has long been clear that Rule 5.6(a)bars not only agreements that wouldexplicitly restrict lawyers’ practices butalso reaches agreements that may notexplicitly bar such actions but createfinancial disincentives to taking theseactions. In Opinion No. 65 (1979) thisCommittee considered an agreement thatsought to compel a lawyer to pay 40 percent of any fees received from a client ofthe lawyer’s former firm if earned withintwo years after the lawyer’s departurefrom the firm. It concluded that such anagreement violated DR 2 108(a) because“[i]ts effect is to impose a barrier to thecreation of a lawyer/client relationshipbetween the departing lawyer and theclients of his former firm.” Even if it didnot do so literally, the Committee noted,such a barrier interfered with clients’choice of attorney because “[t]he depart-ing attorney would find work for clientsof the former firm economically lessattractive than work at similar ratesreceived from other clients, and might be

deterred from accepting employmentfrom such clients.”

Opinion No. 241 (1991) concludedthat an agreement created a financial dis-incentive on a departed lawyer’s compe-tition with the lawyer’s former firm.There, a law firm’s partnership agree-ment provided for the repayment of apartner’s capital account over a period offive years, except that where after depar-ture a partner practiced law in the Districtof Columbia, the repayments weredelayed for five years or until the depart-ing partner had reached the age of 65 orstopped practicing in the District ofColumbia. The Committee concludedthat the agreement violated Rule 5.6(a)because “the financial penalties imposedon a departing lawyer serve no other pur-pose than restricting practice and insulat-ing the firm from potential competition.”

We note, however, that the simpleexistence of an economic cost to leave afirm does not necessarily mean that Rule5.6(a) has been violated. To constitute aviolation, an agreement must effectively“restrict the rights of a lawyer to practiceafter termination of the relationship.”Where such a restriction is not explicit,the effect of the agreement must be tocreate such a restriction on competitionor other limitation on practice. For thisreason, it can be necessary to examinesurrounding circumstances to determinewhether a violation of the Rule 5.6(a) hasoccurred where the restriction on alawyer’s practice is not expressed.4

The Rule also contains an exceptionfor “an agreement concerning benefits onretirement.” Much of the attention thathas been paid to this rule by courts, ethicscommittees, and commentators has dealtwith this exception, whose scope is oftendebated. See, e.g., Borteck v. Riker,Danzig, Scherer, Hyland & Perretti LLP,

844 A. 2d 521 (N.J. 2004) (in which, at530-31, the New Jersey Supreme Courtcalled upon its Professional Responsibili-ty Rules Committee to review Rule 5.6(a)“to determine whether the rule shoulddefine ‘retirement’ and, if so, to propose adefinition or related criteria”); Neuman,supra, 715 A. 2d at 136 (in which theD.C. Court of Appeals discussed, butfound it unnecessary to decide, the issueof the scope of the exception). Courts thathave decided the issue have generallyconcluded that the exception extendsonly to the kind of retirement that occursat the end of a career. E.g., Cohen v. Lord,Day and Lord, 550 NE 2d 410 (N.Y.1989); see Borteck, 844 A.2d at 527. Pro-fessors Hazard and Hodes agree that if“retirement” meant simply the termina-tion of the “partnership or employment”relationship, then the exception wouldswallow the rule. It would except fromthe Rule’s prohibition every agreementmade on termination of every relation-ship. 2 Hazard and Hodes, The Law ofLawyering § 47.4 at 47-5 to 47-6. (3d ed.2001). Although in Neuman v. Akman,715 A. 2d at 126, the D.C. Court ofAppeals did not have to decide the issue,by extensively describing why the agree-ment there at issue constituted a “retire-ment agreement” within the meaning of aretirement at the end of a career, and byfavorably citing Gray v. Martin, 663 P. 2d1285, 1290 (Oregon App. 1983), see Neu-man, 715 A. 2d at 134, the court suggest-ed that if called upon it would view thisissue no differently from the otherauthorities we have cited. We thereforeconclude that the provisions in questionhere, which apply when a partner leavesthe Merged Law Firm regardless of age,do not come within the “retirement”exception of Rule 5.6(a).

3. Discussion

We first note that it might be arguedthat the agreement to form ReceivablesLLC was not a “partnership” agreementwithin the meaning of the Rule. However,the LLC was created by the partners ofthe pre-merger Law Firm solely to obtainand distribute to those partners fundsowed to the pre-merger Law Firm in pay-ment for its previously completed legalwork. We therefore conclude that theagreement that created Receivables LLCis a “partnership . . . agreement” within themeaning of the Rule. Otherwise, a firmcould avoid the prohibition of Rule 5.6 bycreating a separate organization to handleportions, but not all, of the firm’s lawpractice. Law firm mergers have becomemore frequent in recent years. Individual

258 THE DISTRICT OF COLUMBIA BAR December 2004

4 See Opinion No. 221, involving a lawyer whohad departed from a firm taking contingent feeclients along with him. An employment agreementbetween the lawyer and that firm provided that inthe event of such a departure and the later receipt bythe lawyer of a contingent fee from that client, aportion of that fee would be allocated and paid backto the former firm, with the allocation made on thebasis of a percentage formula depending on thelength of time the lawyer had worked on the casewhile at the firm. The Committee concluded that ifthe percentage formula “represent[ed] a generallyfair allocation of fees based on the firm’s historicalexperience there is no violation of Rule 5.6(a). Onthe other hand, if the firm’s share is excessive, thiswould have the effect of restricting the right of thedeparting lawyer to practice after the termination ofthe relationship in violation of Rule 5.6(a).” TheCommittee also pointed out that it “cannot makefact findings” and thus “can neither approve nor dis-approve the specific percentages used by the firm.”

3 The case at hand is an example of the benefitthat may flow to clients from a change of firm by alawyer. The inquirer changed firms because theMerged Firm’s practice had become less hospitableto the clients he represented, and he sought to prac-tice in a different firm where his clients’ goals didnot conflict with those of other firm clients.

lawyers in a firm that is contemplatingmerging with another may be concernedabout whether the firm that would resultfrom the merger would be as satisfactorya place for them to practice for clients aswas their pre-merger firm. Similarly, thequestion of which partners in the negoti-ating firms are likely to remain at themerged firm can be a feature of mergernegotiations. In these contexts the limita-tions of Rule 5.6 can be particularly sig-nificant. It would not be consistent withthe language or purpose of that Rule toallow partners of one or both of the merg-ing firms to escape scrutiny under it byforming separate organizations to achievesome of their purposes.

We now examine in turn the two kindsof payments made under the agreementforming the LLC. We note as a prelimi-nary point that we do not think that itcould be argued that for purposes of thisanalysis under Rule 5.6 the Merged Firmis somehow a continuation of the pre-merger Law Firm. The LLC was formedonly by the partners of the pre-existingLaw Firm (and not by others involved inthe merger) and applies only to them, andoperation of the LLC is independent of thecompensation of the Merged Law Firm.

Under the LLC, the Membership shareamounts are paid to former Law Firmpartners pursuant to fixed percentagesattributable to each partner’s ownershipshare of the pre-merger firm. TheseMembership interests expire, i.e., do not“vest,” if a lawyer leaves the MergedFirm before the end of the two-year peri-od, unless the reason for departure duringthat period is death, disability, illness, orretirement from the practice of law, inwhich case the right to continue receivingthe payments vests even though thelawyer in question has departed beforethe two years had passed. As we haveseen, the inquirer left within the twoyears, before his interest became fixed,because he felt that he could not pursuehis practice freely and serve the clientsthat would most benefit from his experi-ence and developed expertise, in the newdirection that the Merged Firm took.

In effect, the imposition of the two-year vesting period is an action by thepartners of the pre-merger Law Firm thatuses assets belonging to them to inducethemselves not to depart from the MergedFirm for at least two years after the merg-er. The pre-merger firm’s entitlement tothe payments was fixed before the merg-er. With the termination of the pre-merg-er Law Firm, its partners had theunconditional right to receive those sumsas they were eventually paid. The agree-

ment creating the LLC provides thatthese payments are to be distributedbased on a formula using each lawyer’spercentage share of the profits of the pre-merger Firm, a fixed formula entirelybased on past events. But the agreementgoes further and adds the condition thateach lawyer’s entitlement to continue toreceive these payments depends on thatlawyer remaining with the Merged Firmfor two years. The fact that there is anexception to the two-year vestingrequirement for partners who may retirefrom practice, die, or become disabledbefore the end of the two years under-scores that those partners who are capa-ble of leaving the firm to practiceelsewhere are the ones who are affectedby a financial disincentive inherent in thevesting period.5

For this reason, while the agreementhere does not explicitly say that it cuts offpayments where a lawyer leaves theMerged Firm to practice with othersbefore the two-year vesting period ends,that is its clear impact—and it is whathappened in the inquirer’s situation. Thetwo-year vesting requirement applies tocut off payments of the Managementshares only to those lawyers who departbecause they intend to practice law else-where.6 It accordingly penalizes (by stop-ping the flow of previously earnedincome) those who continue to practicebut do not do so with the Merged Firm.While it is of course possible that a part-ner would leave to practice law but not incompetition with the Merged Firm (suchas by moving to another city—althoughin specialized practice areas even such amove may not avoid competition with a

lawyer’s former firm), we believe thatthat is a comparatively rare occurrencefor lawyers who have reached the stagein their careers where they are partners ina firm. That mere possibility does notchange the dominant practical impact ofthe provision, which is to penalize thosepartners who seek to serve their clientsby practicing elsewhere than the MergedLaw Firm by depriving them of a portionof previously earned fees that otherwisewould be theirs. Nor does the fact that theinquirer left the Merged Law Firm toconduct a kind of practice that that firmwas not interested in pursuing affect ourview. The inquirer wished to continue torepresent clients with views generallyopposed to that of the Merged LawFirm’s clients. The purpose of Rule 5.6 isto bar agreements among lawyers thatwould create restrictions on a lawyer’sability to move to a better practice envi-ronment within which to seek to repre-sent his or her clients’ interests. Anagreement that penalizes a lawyer forleaving a firm where most of the practiceis hostile to the lawyer’s particular clientsis just as harmful to the purpose of Rule5.6 as trying to prevent a lawyer fromcompeting for the same kinds of clientsas his former firm.7

The Originators’ shares present a dif-ferent and more difficult issue. The rightto continue to receive an Originator’sshare does not ever become fixed, or vest,and therefore a partner who departs fromthe Merged Firm for any reason, includ-ing death, illness, retirement, moving toanother firm (whether in competition withthe Merged Firm or not), or leaving theprofession to pursue another endeavor,

7 We also do not believe that the fact that alawyer need remain at the Merged Firm for onlytwo years before being able to depart assured ofcontinuing to receive the Management share makesa difference. Clients whose situations wouldimprove if their counsel could change firms shouldnot be asked to wait while their preferred counselfulfills a two-year vesting period. It is possible thatin setting the two-year period the drafters of theReceivables LLC documents sought to derive somecomfort from footnote 13 in Neuman, 715 A.2d at136. That footnote deals, however, with a provisionin a retirement plan approved by the Court underwhich a retired lawyer could resume practice aftertwo years of retirement and still receive retirementbenefits from the lawyer’s former firm. The Courtdescribes that provision as having “limited anti-competitive effect”. But under the retirementexception to Rule 5.6, when a lawyer retires iswhen a full restriction on the lawyer’s right to prac-tice is permitted. Thus, as a condition to the contin-ued receipt of retirement benefits a law firm coulddemand a much longer period of restricted practicethan two years, and it is only by comparison to thatpossibility that a two year restriction is “limited.” Atwo year restriction on practice in the middle of alawyer’s career is not “limited.”

5 Even with our conclusion that “retirement”means the end of a career practicing law, this por-tion of the agreement is not an “agreement con-cerning benefits on retirement” within the meaningof Rule 5.6(a). Its primary purpose is not to providefor retirement benefits, but to create a vesting peri-od for continued entitlement to a division of feesearned in the past. This vesting period is imposedon partners who do not retire; the fact that it iswaived for those who do retire does not alter itsimpact on those who do not. Moreover, none of thefactors relied on by the court in Neuman as show-ing the kind of agreement that is a true retirementagreement under this view is present here. Thefunds distributed here are profits from work alreadydone, not work to be done; there is no requirementthat entitlement to those distributions is limited topartners of conventional retirement, and the pay-ment of the benefits is not spread “over the entireremaining lifetime of the retiring partner.” Neuman,715 A 2d. at 136 - 38.

6 Presumably a partner who enters another fieldof endeavor has “retire[d] from the practice of law”and would thus be entitled to continue to receivethe Management shares even if he or she left thefirm before the two years had expired.

December 2004 THE DISTRICT OF COLUMBIA BAR 259

loses the right to continue to receive Orig-inator’s shares. Indeed, the inquirerinforms us that in the case of a partnerentitled to an Originator’s share who died,the payment of that share was indeed ter-minated. Upon inquiry from the deceasedpartner’s estate, the Merged Firm statedthat this treatment of Originators’ sharesexisted because while under the compen-sation arrangements of the pre-mergerLaw Firm, partners were given recogni-tion for matters that they “originated”(i.e., were responsible for bringing in tothe firm), such an arrangement was nolonger possible in the Merged Law Firm,and the LLC treatment of Originators’shares was created to mimic the compen-sation from these sources of income in thepre-merger Law Firm.

While we do not see the issue as whol-ly free from doubt, we conclude that thetreatment of the non-“vested” Origina-tors’ shares also falls afoul of Rule 5.6.With respect to these shares, the Receiv-ables LLC agreement conditioned thedistribution of the previously earnedassets of the pre-merger Law Firm, whichwas ending its business, so that they con-tinued to be paid only as long as the pre-merger firm’s ex-partners continued topractice at the designated new post-merg-er firm. If the pre-merger firm had simplywound up its affairs entirely, presumablythe partners would have distributed thisright to future income to themselves asindividuals, unconditionally. But insteadthe partners of the pre-merger Firm con-ditioned the future distribution of thatasset on continued practice with a newand different firm. Moreover, while theOriginator’s share ceases to be paid to apartner who leaves the Merged Firm forany reason, including illness, death, andretirement, this fact would have moreforce if it were applied by a law firm thatwas operating and continuing to operateits own practice. With a firm that is anongoing practice, it makes basic sense tostop compensating partners who depart.But in the context of a firm that haswound up its affairs and sought nonethe-less to exercise some future control overthe distribution of previously earnedassets, it would blink reality to fail toobserve that death and disability are notvoluntary departures and that retirement,while it may be delayed, is also ultimate-ly largely involuntary. Thus the cleareffect of the non-vesting feature of theOriginators’ shares is to discourage part-ners from voluntarily leaving the MergedFirm as long as the payments continue,and the primary route of voluntary depar-ture is, as in the case of the inquirer, leav-

ing to practice at another firm. We do notsee why the future payout of a previouslyfully earned asset would be conditionedon a partner’s staying with the MergedFirm unless the purpose of the conditionwere to incentivize the recipients to staywith the firm by depriving them of thatpreviously earned asset if they left it. Webelieve that Rule 5.6(a) does not allowthe partners of a firm that is winding upits affairs because the partners are, as partof a merger, joining a new firm, to usetheir former firm’s assets to create finan-cial disincentives to themselves to leavethe new firm.

As just suggested we do not mean toimply that the same considerations applywhen a firm has an ongoing practice andsimply ceases to compensate lawyerswho leave it. Firms whose method of cur-rent compensation takes account of con-tributions of partners in previous years,even identifying streams of income ashaving been attributable to partners’work in previous years and increasingtheir compensation by a portion of thatamount, do not run afoul of the Rule sim-ply because when a partner leaves thefirm, regardless of the reason, the firmstops compensating that partner and thusdoes not continue to compensate the part-ner for continued benefit of his or herprior work to the firm. Firms benefitpresently and in the future from the con-tributions of their partners, and the quan-tification of this as part of thecompensation process is common anddoes not violate the Rule (at least notwithout more, such as some inequality oftreatment that falls disproportionately onthose partners who leave to compete withthe firm). Any partner who leaves a firmthat has such a compensation system cutshimself or herself off from future com-pensation at that firm, even where thedeparting partner contributed measurablyto the continuing success of the firm andcould have continued to participate inthat success by remaining there. Thus, wedo not conclude that an ongoing firm thatcuts off elements of compensation at thetime of a lawyer’s departure from a firm,no matter what the lawyer intends to doafter departure, necessarily violates Rule5.6(a) merely because some departinglawyers would thereafter be competingwith the firm, and we are not aware ofany case or authority that so concludes.8

But in the matter now before us, the

pre-merger Law Firm wound up itsaffairs and distributed its assets to thepartners, yet the former partners soughtto retain some control over those assetsafter distribution, and sought thereby tocontinue—for years into the future—tocondition future entitlement of the for-mer partners’ right to receive payment ontheir continued work for the MergedFirm. It is this attempt by partners of thepre-merger Law Firm to continue toinfluence the future practices of partnerssome time after their departure from thepre-Merger Firm that leads us to con-clude that treatment of this payment aswell violates the Rule.

Adopted: October 2004Published: December 2004

Opinion No. 326

Referral of Person Adverse to a Clientto Another Lawyer

● When a lawyer is approached by apotential client about a representationadverse to an existing client, after declin-ing the case, the lawyer may refer thepotential client to another lawyer.

Applicable Rules ● Rule 1.3 (Diligence and Zeal) ● Rule 1.4 (Communication) ● Rule 1.6 (Confidentiality of

Information) ● Rule 1.7 (Conflict of Interest:

General Rule) ● Rule 4.3 (Dealing with Unrepre-

sented Persons)

Inquiry

A lawyer is approached by a personseeking representation in a matter adverseto a party with whom the lawyer has anon-going lawyer-client relationship. Afterdeclining the representation, may thelawyer refer the person to another lawyer?

Discussion

Lawyers frequently decline representa-tions but suggest the names of otherlawyers who might represent the potentialclient. For example, a lawyer who isapproached by a person seeking to write awill might refer that person to anotherlawyer or other lawyers who have expert-ise in trusts and estates law that the refer-ring lawyer lacks. A lawyer who representsa client in a grand jury investigation mightrefer another person who has been subpoe-

260 THE DISTRICT OF COLUMBIA BAR April 2005

8 Compare comment b. to § 13(b) of theRestatement of the Law Governing Lawyers(2000), which discusses denial of “benefits” effec-tive at the time of a lawyer’s departure from a firm.

naed to testify before the grand jury toanother lawyer or other lawyers to avoid apossible conflict of interest. But what are alawyer’s obligations when approached bya person who wants to sue an existingclient? We assume, for purposes of thisopinion, that the lawyer would decline therepresentation.1 May the lawyer recom-mend another lawyer or a list of lawyers tothe person who wishes to sue her client?2

The Rules of Professional Conduct

The District of Columbia Rules of Pro-fessional Conduct do not speak directly tothis situation. Nor have we been able tofind authority from other jurisdictionsdirectly on point. Two Rules seem to berelevant indirectly. First, Rule 4.3 provides:

In dealing on behalf of a client with aperson who is not represented by counsel,a lawyer shall not:

(a) give advice to the unrepresented per-son other than advice to secure counsel,if the interests of such person are or havea reasonable possibility of being in con-flict with the interests of the lawyer’sclient . . .

Rule 4.3(a) contemplates a differentsituation than the inquiry under consider-ation, namely that the lawyer is alreadyrepresenting a client in a matter poten-tially adverse to the unrepresented per-son. The inquiry presumes either that thematter has not yet been initiated or thatthe lawyer does not represent the existingclient in that particular matter.3 Nor doesthe Rule address whether it is appropriatefor the lawyer to recommend a specificlawyer or list of lawyers whom theunrepresented person might engage asopposed to advising the person that heneeds to engage (unspecified) counsel.

We can, however, distill from Rule 4.3(a)that a lawyer is permitted to advise anunrepresented person, adverse to herclient, to retain counsel even though herclient might gain a tactical advantage ifthe person remained unrepresented.Lawyers frequently give this advice andtell persons potentially adverse to theirclients that they ought to engage counsel.

Rule 1.3 is also tangentially relevant.In addition to the requirement that alawyer represent her client zealously anddiligently within the bounds of the law,Rule 1.3(a) provides that “A lawyer shallnot intentionally: . . . (2) prejudice ordamage a client during the course of theprofessional relationship.” The require-ment that a lawyer not damage a clientdoes not mean, however, that the lawyermust press for every conceivable tacticaladvantage. Comment [1] to Rule 1.3 pro-vides that the duty of zealous representa-tion does not require a lawyer to press forevery advantage that might be realizedfor a client. Moreover, zealous represen-tation must at times be tempered by thelawyer’s obligation to the administrationof justice. In fact, certain conduct thatmight arguably prejudice a client’s case ismandatory under the Rules such as therequirement in Rule 3.3(a)(3) that thelawyer disclose adverse and dispositivelegal authority adverse to the client’sposition, if her opponent overlooks it.

Recommending that an adverse personretain counsel does not constitute damageor prejudice to a client within the meaningof Rule 1.3(a). Rule 4.3(a) specificallypermits such a recommendation. In thesituation under inquiry, where the personhas already determined to engage counselprior to approaching the lawyer, such gen-eral advice would be superfluous. We donot believe that the further step of recom-mending a specific lawyer or list oflawyers prejudices the referring lawyer’sexisting client. We assume that in makingsuch a referral, the lawyer will act in goodfaith and will recommend competent andindependent counsel. First, the personwould almost certainly find a lawyer evenin the absence of a recommendation. Sec-ond, it would be mere speculation to con-clude that the lawyer that the personmight find on his own would not be ascompetent as the one recommended bythe conflicted lawyer. The lawyer couldbe as good, better, or not as good as theone that the conflicted lawyer might rec-ommend. Moreover, we cannot assumethat it is disadvantageous to the referringlawyer’s existing client for its adversaryto be represented by competent counsel.Competent opposing counsel is likely in

many cases to contribute to reaching areasonable resolution of the dispute.

More basically, inherent in our adver-sary system is the principle that personsought to be represented by competentlawyers and that disputes ought to beresolved on their merits. Assisting a per-son to obtain competent representation isentirely consistent with that principle.Once the issue is joined, a lawyer can andshould take whatever lawful and ethicalmeasures that are required to vindicateher client’s position. Assisting an adver-sary to obtain competent representation,so that the issue can be joined, is notinconsistent with that duty. It is consis-tent, however, with the lawyer’s obliga-tion to the administration of justice. Attimes, the interests of the legal systemand the public interest may prevail overthat of the client, e.g., Rule 3.3(a)(3). Webelieve that recommending competentcounsel to an unrepresented person, cannever constitute prejudice to a clientwithin the meaning of Rule 1.3(a).

Practical Considerations

There are, however, some practicalconsiderations to recommending counselto a potential adversary of a lawyer’sclient. First, will the person trust the rec-ommendation? Second, while the princi-ples that underlie our adversary systemmay permit such a recommendation, someclients may not understand why theirlawyer assisted an adversary to obtaincounsel to sue them. Thus, as a matter ofclient relations, a lawyer may prefer not tomake such a recommendation. Moreover,a prudent lawyer who elects to make arecommendation might be wiser to sug-gest more than one name to avoid recrim-inations from the inquirer, should therecommended lawyer prove unsatisfacto-ry, or from her client, should the recom-mended lawyer turn out to be vexatious.4

The practical consideration relating totwo other Rules merit discussion. Thereis always the possibility that in discus-sions with a potential client, a lawyermay learn confidences or secrets that theperson does not want revealed.5 If the

April 2005 THE DISTRICT OF COLUMBIA BAR 261

1 Rule 1.7 generally prohibits the lawyer fromaccepting such a representation. It is possible, ofcourse, for the lawyer to seek a waiver from theexisting client (and the potential client) under Rule1.7 and sue her client, if that existing client wererepresented by another lawyer in the matter.

2 The most likely scenario is that the lawyer isapproached by a potential plaintiff. She could alsobe approached by a defendant, already sued by herclient who is represented by another lawyer in thematter. Presumably similar situations might arise ina non-litigation context such as a potential clientwho wants to retain counsel to represent him in abusiness transaction with the lawyer’s existingclient. In a non-litigation context, where the adver-sarial relationship is less stark, the existing client isless likely to be offended by its lawyer’s referral ofthe potential client to another lawyer.

3 If the lawyer represents the client in a matteralready initiated, presumably the unrepresentedperson would not seek to engage the lawyer repre-senting his adversary.

4 It may not always be possible to recommendmore than one lawyer. For example, if the person isseeking pro bono counsel, furnishing a list ofnames may be impractical.

5 We assume that the lawyer discovers the con-flict before forming a lawyer-client relationship.Whether such a relationship has been formed is amatter of substantive law. Comment [7] Rule 1.6.See ABA Formal Op. 95-390 (citing Restatement(Third) of the Law Governing Lawyers § 26 (Tent.Draft No. 5 1992) for the indicia of when a lawyer-client relationship arises.

lawyer does learn of these confidences orsecrets and then realizes that the potentialclient is adverse to an existing client, shefaces a dilemma: Under Rule 1.4, whichconcerns the lawyer’s obligation to com-municate with clients, she may have anobligation to inform her existing clientthat someone intends to sue it. In somecircumstances the failure to inform theexisting client could be damaging. Sup-pose, for example, the potential clientseeks to bring a sexual harassment claimagainst her employer, an existing client,because of an on-going hostile environ-ment. The client should want to knowthis as soon as possible so that it couldinvestigate and if necessary remediate thesituation. On the other hand, the potentialclient might not want to disclose to thelawyer’s existing client that she is con-templating a lawsuit. Comment [7] toRule 1.6, which prohibits, in general, thedisclosure of confidences and secrets,makes it clear that the lawyer’s duty ofconfidentiality attaches when the lawyeragrees to consider whether to take on aclient. “Thus, a lawyer may be subject toa duty of confidentiality with respect toinformation disclosed by a client toenable the lawyer to determine whetherrepresentation of the potential clientwould involve a prohibited conflict ofinterest . . .” Presumably, most lawyersascertain at the outset the name of theadverse party prior to discussing with apotential client a new matter. But if alawyer neglects to do so or if a lawyer,particularly in a large firm, does not rec-ognize at the outset that the adversary isa firm client, the lawyer may be seizedwith confidential or secret information.6

Under those circumstances, the specif-ic obligation under Rule 1.6 not to revealthose confidences and secrets trumps themore general Rule 1.4 obligation to keepclients informed. Nevertheless, a lawyerwho must refrain from telling her client

information that the client would wish toknow—even if the only “secret” was thepotential client’s contemplated suit—might hesitate before taking the steps ofactually recommending counsel to theinquiring person. Many clients mightfind it difficult to understand that theirlawyer not only failed to tell them theywere about to be sued, but also recom-mended counsel to file that suit.

In sum, we believe that it is consistentwith a concept of our adversary system,and not prohibited by the Rules of Pro-fessional Conduct, for a lawyer, if shechooses, to refer a person seeking repre-sentation to another lawyer, even if therepresentation would be adverse to thereferring lawyer’s existing client. Eachlawyer must decide for herself whetherunder the particular circumstances this isa wise thing to do.

Adopted: December 2004 Published: December 2004

Opinion 327

Joint Representation: Confidentialityof Information Revisited

● Where one client has given consentto the disclosure of confidential informa-tion by the lawyer to another client, wehave already concluded that the lawyermay reveal the confidence or secret. Herewe conclude that the lawyer must do so ifthe information is relevant or material tothe lawyer’s representation of the otherclient. Because the disclosing client pre-viously has waived confidentiality, thereis nothing to weigh against either thelawyer’s duty of loyalty to the non-dis-closing client or the lawyer’s obligationto keep that client reasonably informed ofanything bearing on the representationthat might affect that client’s interests.

Applicable Rules● Rule 1. 3 (Diligence and Zeal) ● Rule 1. 4 (Communication) ● Rule 1. 6 (Confidentiality of

Information) ● Rule 1. 7 (Conflict of Interest) ● Rule 1. 16 (Terminating Repre-

sentation)

Inquiry

The inquiry comes from a law firm thathas succeeded to the representation ofseveral clients who had been representedby a prior firm. The prior firm had origi-nally represented multiple clients in the

same matter. In its retainer agreement, theprior firm had explained to all of the joint-ly represented clients that it was “under-stood that (a) we will not be able to adviseyou about potential claims you may haveagainst any of the Other Individualswhom we represent and (b) informationyou provide to use in connection with ourrepresentation of you may be shared by uswith the Other Individuals whom we rep-resent.”1 After apparently learning certainconfidential information from one of thejointly represented clients, the prior firmwithdrew from representing the otherclients and continued to represent only theclient from whom the confidential infor-mation had been learned. Upon assumingthe representation of the other clients, theinquiring law firm requested that the priorfirm disclose all information relevant toits prior representation of those clients,including the confidential informationthat had led to its withdrawal. The priorfirm refused. The inquirer seeks an opin-ion whether, under these circumstances,the prior firm is required to share with theother clients all relevant informationlearned during its representation, includ-ing any relevant confidences and secrets.

Discussion

In Opinion No. 296, we concluded thatthe mere fact of joint representation, with-out more, does not provide a basis for alawyer to conclude that the client hasimpliedly authorized disclosure of confi-dences or secrets to another client. “With-out clear authorization, a lawyer may notdivulge the secrets of one client to another,even where the discussion involves thesubject matter of the joint representation.This is particularly true where disclosurewould likely be detrimental to the disclos-ing client.” D.C. Ethics Op. 296.2 Under

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6 Under some circumstances, disclosure of con-fidential information by a potential client thatmight be useful to the representation of an existingadverse client, might disqualify the lawyer fromrepresenting the existing client in the matteradverse to the potential client. Comment [7], Rule1.10. See N.Y. Eth. Op. 643, 1993 WL 57240 (N.Y.St. Bar Assn. Comm. Prof. Eth.) (a confidencerevealed in an intake interview of prospective clientrelevant to representation of existing client requireswithdrawal from existing representation and sepa-rate lawyers for each client.) Fl. Eth. Op. 92-1,1992 WL 602798 (Fla. St. Bar Assn.) (presumingconfidential information is always obtained inLegal Aid intake interview). A conflict obtained asa result of learning confidential information indeciding whether to enter into a representation isnot imputed to other associated lawyers when nolawyer-client relationship is formed. Rule 1.10(a)and Comment [7].

1 The retainer agreement defined the term“Other Individuals” by listing the names of thoseindividuals whom the prior firm “may represent.”

2 We do not read D.C. Ethics Op. 296 to suggestthat privileged information provided by one clientduring the course of a joint representation (that isalso relevant to the joint representation) remainsprivileged in a subsequent dispute between the twoclients. Such an interpretation would appear to beinconsistent with District of Columbia law. SeeGriva v. Davison, 637 A. 2d 830, 847-48 (D.C.1994) (with respect to matters known at the time ofcommunication to be in the common interest of anattorney’s two clients,“‘a communication by A to Xas the common attorney of A and B, who afterwardsbecome party opponents, is not privileged asbetween A and B since there was no secrecybetween them at the time of communication.’”)(quoting 8 J. Wigmore, Evidence § 2312 at 605-06(McNaughton rev. ed. 1961)) (citing Eureka Inv.Corp., N. V. v. Chicago Title Ins. Co., 743 F. 2d 932,937 (D.C. Cir. 1984)).

such circumstances, the lawyer’s onlyoption is to seek consent of the disclosingclient to share the information or ask theclient to disclose the information directly.If the client refuses, the resulting conflict ofinterest requires the lawyer’s withdrawal.3

The inquirer presents a variation on thequestion addressed in Opinion No. 296:in contrast to the earlier opinion, wherewe recognized that “[t] he retainer agree-ment did not address the impact of jointrepresentation on client confidences orseek consent for the Firm to share confi-dences of one party to the joint represen-tation with the other,” id. at 174, theretainer agreement here expressly provid-ed that information disclosed in connec-tion with the representation “may beshared” with the other clients in the samematter. The question raised by thisinquiry, however, is not whether theinformation “may” be shared but whetherit “must” be shared. Rather than seekingpermission to disclose the confidentialinformation (which is the way this issuehas often arisen in other jurisdictions),the prior firm has refused to reveal theinformation. The issue we now consideris whether, under the specific facts pre-sented here, the prior firm has an affir-mative obligation to disclose.4

When one client provides a lawyer withmaterial information and makes clear(either directly or indirectly) that suchinformation is not to be communicated toanother, jointly represented client, thelawyer faces a potential conflict. If theinformation is relevant or material to theother client, the failure to disclose it wouldcompromise the lawyer’s duties of loyalty(D.C. Rules 1.3(b) & 1.7(b)), diligence(D.C. Rule 1.3(c)), and communication(D.C. Rule 1.4) to that other client. On theother hand, sharing the information wouldcompromise the communicating client’sexpectations of confidentiality and riskimpairing that client’s trust in the lawyer.See generally Restatement of the LawGoverning Lawyers § 60, cmt. l (2000)(“Restatement”) (discussing the lawyer’s“dilemma”). Because the lawyer simplycannot continue in the representation with-out compromising either the duty of com-munication to the non-disclosing client orthe expectation of confidentiality of thedisclosing client, the lawyer must ordinar-ily eliminate the conflict by withdrawing.5

In a comment to its Model Rule 1.7, theABA makes this point expressly:

As to the duty of confidentiality, contin-ued common representation will almostcertainly be inadequate if one client asksthe lawyer not to disclose to the otherclient information relevant to the com-mon representation. This is so becausethe lawyer has an equal duty of loyaltyto each client, and each client has theright to be informed of anything bearingon the representation that might affectthat client’s interests and the right toexpect that the lawyer will use thatinformation to that client’s benefit. See

Rule 1.4. The lawyer should, at the out-set of the common representation and aspart of the process of obtaining eachclient’s informed consent, advise eachclient that information will be sharedand that the lawyer will have to with-draw if one client decides that somematter material to the representationshould be kept from the other.

ABA Model Rule 1.7, Comment [31].At least one jurisdiction has recognized

that a lawyer under such circumstanceshas broad discretion to disclose confiden-tial information before withdrawing. In A.v. B., 726 A. 2d 924 (N. J. 1999), the NewJersey Supreme Court considered whethera law firm, which jointly represented ahusband and wife in drafting wills inwhich they devised their respective estatesto each other, may disclose to the wife thefact that the husband had recently fatheredan illegitimate child. The law firm’sretainer letter explained that informationprovided by one spouse could becomeavailable to the other. “Although the letterdid not contain an express waiver of theconfidentiality of any such information,each spouse consented to and waived anyconflicts arising from the firm’s joint rep-resentation.” Id. at 925. The informationwas clearly relevant to the wife because,as the court explained, “[t]he wife’s willleaves her residuary estate to her husband,creating the possibility that her propertyultimately may pass” to his illegitimatechild. Id. at 926.

The law firm became aware of the hus-band’s illegitimate child after the willswere executed.6 The law firm wrote tothe husband that it believed it had an eth-ical obligation to disclose to the wife theexistence (but not the identity) of thechild on the grounds that it needed toinform the wife that her current estateplan might devise a portion of her assetsthrough her spouse to that child. The lawfirm urged the husband to inform his wifeand that, if he did not, the law firm woulddo so. The husband refused and obtainedan injunction from the appellate divisionto prevent the law firm from disclosing tothe wife the existence of the child.

The Supreme Court reversed. New Jer-sey’s Rule 1.6 “permits, but does not

April 2005 THE DISTRICT OF COLUMBIA BAR 263

6 The law firm learned of the husband’s paterni-ty because the mother of the illegitimate child hadcoincidentally retained the same law firm to pursuea paternity action against the husband. As a resultof a clerical error, the law firm did not becomeaware of the conflict until discovery had com-menced in the paternity suit. Upon learning of theconflict, the law firm immediately withdrew fromrepresenting the mother, informing her that the lawfirm was representing both the husband and wife inan unrelated matter.

5 Typically, our rules require a lawyer with-drawing under such circumstances simply to give“notice of withdrawal, without elaboration,” D. C.Rule 1.6, Comment [19]. However, there is anexception permitting a lawyer, upon withdrawing,to “retract or disaffirm any opinion, document,affirmation or the like that contains a material mis-representation by the lawyer that the lawyer rea-sonably believes will be relied upon by others totheir detriment.” Id. (emphasis added). The lan-guage of the comment makes clear that this require-ment is not mandatory: “[A]fter withdrawal undereither Rule 1. 16(a)(1) or Rule 1.16(b)(1) or (2), thelawyer may retract or disaffirm any opinion, docu-ment [etc. ] . . . .” D. C. Rule 1.6 Comment [19](emphasis added). We made clear in Opinion No.296, however, that such a “noisy” withdrawal dis-affirming earlier written statements is permissibleonly “if there is a reasonable basis to expect thatfuture harm may occur without such disavowal.” D.C. Ethics Op. 296. In the absence of such a reason-able basis, the most the lawyer may do is “to warnthe affected co-client that a matter seriously andadversely affecting that person’s interests has cometo light, which the other co-client refuses to permitthe lawyer to disclose.” Restatement § 60, cmt. l.

3 Whether the lawyer must withdraw from rep-resenting all clients or only from clients other thanthe disclosing client depends (at least in part) onwhether the lawyer’s retainer agreement permits thelawyer to continue to represent only one or some ofthe parties. See, generally, D.C. Ethics Ops. 317 &296. In the inquirer’s case, the retainer agreementpermitted the prior firm to continue to represent theclient whose confidential information precipitatedthe conflict: “A judgment by us that you or one ofthe Other Individuals should seek separate counselwould be a judgment solely within our discretion,and the party who in our sole determination shouldseek separate counsel waives any objection to ourcontinuing representation of the other party or par-ties in any matter including the one presenting theconflict, and for any purpose, including in connec-tion with asserting position on behalf of our contin-uing client(s) that are or may be directly adverse tothe individual seeking separate counsel.”

4 We are assuming in this opinion that the infor-mation that caused the prior firm to withdraw con-stituted, in fact, a client “confidence” or “secret. ”If the information prompting the withdrawal werenot a confidence or secret, there would clearly benothing to balance against the prior firm’s duty ofloyalty to the non-disclosing clients and its duty tokeep those clients “reasonably informed about thestatus of [the] matter.” D.C. Rule 1.4(a); see alsoD.C. Rule 1.16, Comment [10] (upon withdrawal,“a lawyer must take all reasonable steps to mitigatethe consequences to the client”). We are alsoassuming that the confidence or secret is relevant ormaterial to the representation of the other clients. Ifthe information were not relevant or material to theprior firm’s representation of the other clients, thenthere would be no duty under D.C. Rule 1.4 to dis-close such information to the other clients.

require, a lawyer to reveal confidentialinformation to the extent the lawyer rea-sonably believes necessary ‘to rectify theconsequences of a client’s criminal, ille-gal or fraudulent act in furtherance ofwhich the lawyer’s services had beenused.’” Id. at 927 (quoting NJ RPC 1.6(c)) (emphasis added).7 The court con-strued the term “fraudulent act” to applyin this situation: “[T]he husband’s delib-erate omission of the existence of his ille-gitimate child constitutes a fraud on hiswife. When discussing their respectiveestates with the firm, the husband andwife reasonably could expect that eachwould disclose information material tothe distribution of their estates, includingthe existence of children who are contin-gent residuary beneficiaries. The husbandbreached that duty.” Id. Under New Jer-sey law, therefore, the law firm was per-mitted to disclose the confidentialinformation.8

The court considered and then distin-guished two decisions from other juris-dictions that had prohibited disclosure toco-clients. The Florida State Bar Associ-ation’s Committee on Professional Ethicshad considered a factual situation similarto the one in New Jersey: Lawyer hadprepared wills for both Husband andWife and then subsequently learned fromHusband that he had executed a codicilthat made substantial beneficial disposi-tion of his estate to a woman with whomhe had been having an extramarital rela-tionship. See Florida Formal Op. 95-4(1997). Lawyer had never discussed withHusband and Wife whether confidentialinformation learned from the one wouldbe shared with other. Under these cir-cumstances, the Florida Bar concludedthat not only is Lawyer “not ethicallyrequired to disclose the information toWife” but “Lawyer’s ethical obligation ofconfidentiality to Husband precludesLawyer from disclosing the informationto Wife.” Id. at 3. Indeed, the Florida Barexpressly rejected the discretionaryapproach favored in the Restatement.

Florida lawyers must have an unam-biguous rule governing their conduct insituations of this nature. We concludethat Lawyer owes duties of confidential-ity to both Husband and Wife, regardlessof whether they are being representedjointly. Accordingly, under the facts pre-sented Lawyer is ethically precludedfrom disclosing the separate confidenceto Wife without Husband’s consent.

Id. at 5-6The New York State Bar Association's

Committee on Professional Ethics cameto the same conclusion. According to theCommittee, a lawyer representing a two-person partnership may not inform oneof the partners that the other had, in aconversation that was expressly deemedto be “in confidence,” advised the lawyerthat he was actively breaching the part-nership agreement.9 The Committee con-cluded that, in the absence of priorconsent by the clients to the sharing ofall confidential communications—andbecause the disclosing client had“specifically in advance designated hiscommunication as confidential” and thelawyer did not indicate that any informa-tion would be shared with the otherclient—the lawyer may not disclose tothe co-client the communicating client's

statement. See New York State Bar Op.555, at 6 (1984).10

The New Jersey Supreme Court distin-guished both of these prior decisions onthe ground that “the New York and Flori-da disciplinary rules, unlike [New Jer-sey’s] RPC 1.6, do not except disclosureneeded ‘to rectify the consequences of aclient’s . . . fraudulent act in the further-ance of which the lawyer’s services hadbeen sued.’” A. v. B. 726 A.2d at 931.Moreover, the husband and wife in theNew Jersey case, “unlike the co-clientsconsidered by the New York and FloridaCommittees, signed an agreement sug-gesting their intent to share all informa-tion with each other.” Id.11

We have already approved of theapproach of the New York and Floridacommittees. See D.C. Ethics Op. 296.And, unlike New Jersey’s version of Rule1.6 and the current Model Rule—whichpermit the disclosure of client confi-dences to rectify the consequences of aclient’s fraudulent act—the D.C. Ruleincludes far narrower exceptions: to pre-vent a criminal act that the lawyer rea-sonably believes is likely to result indeath or substantial bodily harm or toprevent bribery or intimidation of per-sons involved in proceedings before a tri-bunal. See D.C. Rule 1.6(c).

In addition, of course, D.C. Rule 1.6permits a lawyer to use or reveal a clientconfidence or secret with the consent ofthe client, after full disclosure. See D.C.Rule 1.6(d)(1). As we made clear in Opin-ion No. 296, a lawyer needs “to obtainwritten consent from both clients that thelawyer may divulge to each client all con-fidences received during the course of theretention that relate to the representation.” D.C. Ethics Op. 296, at 175. Accordingto the inquiry, the prior firm had madeclear to each of its clients that informationprovided in connection with the represen-tation “may be shared” with co-clients.

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7 A. v. B. was decided in 1999. At that time, theABA’s Model Rule 1.6 permitted a lawyer to revealconfidential information to the extent that thelawyer reasonably believed necessary “to preventthe client from committing a criminal act that thelawyer believes is likely to result in imminent deathor substantial bodily harm” or to the extent neces-sary to allow lawyers to defend themselves againstcharges of misconduct or malpractice lodged byclients or former clients. Model Rule 1.6 has sincebeen amended twice. First, in 2002, the rule waschanged to allow lawyers to reveal confidentialinformation when they, themselves, are seekinglegal advice about their compliance with the rulesand when necessary to comply with other law orcourt order. Second, in 2003, Model Rule 1.6 wasamended to recognize that confidential informationmay be revealed to prevent future fraud or harmfrom past fraud. Under the current version ofModel Rule 1.6, lawyers may reveal confidentialinformation to the extent they reasonably believenecessary “to prevent the client from committing acrime or fraud that is reasonably certain to result insubstantial injury to the financial interests or prop-erty of another and in furtherance of which theclient has used or is using the lawyer’s services;”and “to prevent, mitigate or rectify substantialinjury to the financial interests or property ofanother that is reasonably certain to result or hasresulted from the client’s commission of a crime orfraud in furtherance of which the client has used thelawyer’s services. ” ABA Model Rule 1.6(b)(2), (3)(2003). As a result of these amendments, ModelRule 1.6 now closely resembles New Jersey’s Rule1.6. D.C. Rule 1.6, however, has not been amend-ed, so it does not recognize any of the fraud excep-tions found in the New Jersey rule or in the currentversion of the Model Rule.

8 The court also relied on the Restatement, which“reposes the resolution of the lawyer’s competingduties within the lawyer’s discretion.” Id. at 929;Restatement § 60, cmt. l (“after consideration of allrelevant circumstances, [the lawyer] has the furtherdiscretion to inform the affected co-client of the spe-cific communication if, in the lawyer’s reasonablejudgment, the immediacy and magnitude of the riskto the affected co-client outweigh the interest of thecommunicating client in continued secrecy”).

10 See also NY City Bar Ass’n, Formal Op.1999-07 (1999) (holding that lawyer’s duties ofconfidentiality and loyalty mandate that lawyerrefuse to provide information to one former clientto the detriment of the other former client).

11 See also Philadelphia Bar Ass’n, Op. No. 94-8 (1994) (concluding that, where circumstances sup-port the conclusion that clients impliedly authorizedlawyer to disclose confidential information to oneanother, the lawyer is not prohibited from disclosingsuch information). The New Jersey Supreme Courtrecognized a third basis for distinguishing its casefrom the prior two—namely, that the law firmlearned of the husband’s paternity from a third party,not from the husband himself, so “the husband didnot communicate anything to the law firm with theexpectation that the communication would be keptconfidential.” A. v. B., 726 A. 2d at 931.

9 The Committee determined that, given the sizeof the partnership, it was reasonable to view “theparticular situation here presented as one where thepartners are joint clients of the lawyer.” NY StateBar Ass’n, Comm. on Prof. Ethics Op. 555, at 2.

We believe that this constitutes consent,authorizing the prior firm to disclose con-fidential information learned during thecourse of the representation that may berelevant or material to its representationof another client in the same matter.12

The retainer agreement presumablyreflects a collective determination by allco-clients that the interests in keepingone another informed outweighs theirseparate interests in confidentiality.Where the disclosing client has expresslyor impliedly authorized the disclosure ofrelevant, confidential information to thelawyer’s other clients in the same mat-ter,13 the duty to keep the non-disclosingclients informed of anything bearing onthe representation that might affect theirinterests requires the lawyer to disclosethe confidential information. Our rulesprovide that a “lawyer shall keep a clientreasonably informed about the status of amatter and promptly comply with reason-able requests for information.” D.C. Rule1.4(a) (emphasis added). Where the dis-closing client has unambiguously con-sented to further disclosure, a lawyer’sduty of loyalty to and the duty to com-municate with the non-disclosing clienttips the balance in favor of disclosure.Indeed, in light of the disclosing client’sconsent, there is nothing left on the otherside of the balance.14

It is, of course, possible that a clientwho has otherwise consented to the dis-

closure of confidential information maywithdraw such consent for a specific dis-closure. Where a client informs thelawyer before disclosing certain confi-dential information that he or she intendsto reveal something that may not beshared with the lawyer’s other clients(notwithstanding a prior agreement to doso), the lawyer has an obligation at thatpoint to inform the client that no suchconfidences may be kept. Under such cir-cumstances, the lawyer can generallywithdraw from representing the disclos-ing client and continue to represent theother clients. Here, by contrast, the priorfirm apparently received information thatit knew the disclosing client did not wishrevealed to the other clients.15 Under theterms of the retainer agreement, the priorfirm’s duty to communicate any relevantinformation to the other clients includedany relevant information learned fromother clients in the same matter, and thisduty attached at the moment the priorfirm learned the information. This under-scores how important it is for a lawyercarefully to explain to all clients in a jointrepresentation that, when they agree thatany relevant or material information maybe shared with one another, they cannotexpect that any relevant or material con-fidential information they may subse-quently reveal to the lawyer will be keptfrom the other co-clients.

Finally, we wish to emphasize that thisinquiry raises anew the concerns we haveexpressed elsewhere about the hazards ofrepresenting multiple clients in the samematter. See, e.g., D.C. Ethics Ops. 217,232, 265 & 301. By agreeing to under-take the representation of multiple clientsand by obtaining a limited waiver of con-fidentiality, lawyers may expose them-selves to significant risks. As we haveconcluded here, a lawyer violates theD.C. Rules of Professional Conductwhen her or she withholds from oneclient relevant or material confidentialinformation obtained from a co-clientwho has consented to the disclosure.

Inquiry No. 04-04-16 Adopted: February 2005 Published: March 2005

Opinion No.328

Personal Representation of Constitu-ents of an Organization, IncludingIndividuals Who Participate in anOrganization’s Governance

● An attorney representing a con-stituent of an organization personally,should make clear at the outset of the rep-resentation when he or she does not rep-resent the organization as an entity. Thelawyer should ensure that the client, aswell as non-client constituents of theorganization with whom the lawyer mayinteract, understand the lawyer’s role.

Further, in view of the pervasive natureof confidential information of the organi-zation to which such a lawyer is likely tobe exposed, in determining whether it ispermissible to subsequently undertakematters that are adverse to the corpora-tion, the lawyer must consider whetherthe organization is a “de facto client” forpurposes of assessing potential conflictsof interest. The analysis is similar to thatwhere a lawyer represents a subsidiary orother affiliate of a corporation.

Ideally, the lawyer should expresslyaddress these issues with the client at theoutset of the representation and incorpo-rate the understanding in the retaineragreement.

Applicable Rules● Rule 1.7 (Conflict of Interest: Gener-

al Rule)● Rule 1.8(e) (Conflict of Interest:

Prohibited Transactions)● Rule 1.9 (Conflict of Interest: Former

Client)● Rule 1.13 (Organizations as Clients)

Inquiry

With the recent heightened scrutiny andincreasing accountability of persons whoparticipate in corporate governance, andthe resulting concerns among such per-sons as to their potential personal liabilityor other exposure to legal risk, such indi-viduals may choose with greater frequen-cy than in the past to retain independentcounsel to protect their personal interests.Such persons could include board mem-bers, corporate officers, or groups of per-sons who serve on audit committees of theboard of directors or other “special com-mittees” of the board set up to ensurecompliance with the directives of the Sar-banes-Oxley Act of 2002, 15 U.S.C. §7201. These personal representationsmust be distinguished from those in which

September 2005 THE DISTRICT OF COLUMBIA BAR 265

12 We are mindful of the concerns we expressedin Opinion No. 309 about the “considerable poten-tial for mischief” when advance waivers of confi-dentiality are read too broadly. However, we do nottreat the waiver of confidentiality at issue here asan “advance waiver” because a confidentialitywaiver given as part of an agreement for represen-tation by a single lawyer of multiple clients is morein the nature of a current, rather than an advance,waiver. See D.C. Ethics Op. 309, nn. 3 & 10.

13 Disclosure of client confidences is permissi-ble not only when the client expressly consents butalso “when the lawyer has reasonable grounds forbelieving that a client has impliedly authorized dis-closure of a confidence or secret in order to carryout the representation.” D.C. Rule 1. 6(d)(4).

14 It is worth emphasizing that our opinion turnson the specific circumstances created by the priorfirm’s retainer agreement. If the clients had not allagreed that the prior firm was authorized to sharerelevant or material information, the “default” rulein our jurisdiction is that the prior firm would havebeen prohibited from sharing one client’s confi-dences with the others. See D.C. Ethics Op. 296.But by contracting around this “default” rule, theclients (and the prior firm) agreed that relevant ormaterial information would be shared. Under thesespecific circumstances—where the disclosingclient has effectively consented to the disclosure—an attorney’s subsequent refusal to share suchinformation with the other clients violates the D.C.Rules of Professional Conduct.

15 It appears that the lawyer described in theNew York State Bar Association’s Opinion No. 55acted similarly when he represented a two-personpartnership yet entered into a conversation express-ly deemed to be “in confidence” with only one ofthe partners.

the lawyer has an organization as a clientand, in carrying out that role, assists con-stituents of the organization in meetingtheir duties to the entity.1

We address here only personal repre-sentations in which individual organiza-tional constituents may have interestswhich are potentially diverse from theinterests of the organization as an entity.2The inquiry is how such a lawyer shouldinteract with the organization, both withregard to carrying out that representationand in assessing conflicts of interest inaccepting new matters that may beadverse to the organization.

Discussion

I. Establishing the RepresentationObviously, representation of an organ-

ization qua organization and representa-tion of a constituent of an organizationpersonally are not the same thing. UnderRule 1.13, when a lawyer represents anorganization, the lawyer-client relation-ship is with the organization as an entityand not its constituents. Comment 13 toRule 1.7 states in part: “As is provided inRule 1.13, the lawyer who represents acorporation, partnership, trade associa-tion or other organization-type client isdeemed to represent that specific entity,and not its shareholders, owners, part-ners, members or ‘other constituents.’”Conversely, when a lawyer represents aconstituent personally, that will typicallyarise because of a perceived potential dis-parity of interest with the organization,and the representation will be of the con-stituent only.3

A lawyer’s failure to give sufficientconsideration to the distinction betweenthese two types of representation can byitself unwittingly cause a change in howthe representation will be treated. Forexample, a lawyer’s receipt of sensitiveinformation from an unwary constituentcan result in a de facto representation ofthe constituent where that had not beenintended by the lawyer. Comment 14 toRule 1.7 states:

[T]here may be cases in which a lawyeris deemed to represent a constituent of anorganization client. Such de facto repre-sentation has been found where a lawyerhas received confidences from a con-stituent during the course of representingan organization client in circumstancesin which the constituent reasonablybelieved that the lawyer was acting asthe constituent’s lawyer as well as thelawyer for the organization client. Seegenerally ABA Formal Opinion 92-365.

At the outset of a representation, there-fore, the lawyer must determine which ofthese two types of representation he isbeing asked to undertake and then fullyinform the prospective client of the dis-tinction. The lawyer and prospectiveclient should then reach a clear under-standing as to which type of representa-tion is desired.4 Failure to address this atthe beginning of the representation canimpair the lawyer’s ability to carry outthe client’s goal. Having decided whichtype of representation to undertake, thelawyer’s conduct should then be consis-tent with that decision.

II. Carrying Out a Personal RepresentationThis Committee has previously

addressed issues related to the implica-tions of a lawyer’s representation of anentity for his or her obligations to relatedentities and persons. See D.C. EthicsOpinion 216 (1991) (Representation ofClosely Held Corporation in ActionAgainst Corporate Shareholder); D.C.Ethics Opinion 269 (1997) (Obligation ofLawyer for Corporation to Clarify Rolein Internal Corporate Investigation); D.C.

Ethics Opinion 305 (2001) (Ethical Con-siderations Arising From Representationof Trade Association).

In Opinion No. 269, we addressed acorporate lawyer’s obligations whenconducting an internal investigation of acorporation. In a portion of that opinion,we also discussed the lawyer’s obligationwhen he or she represents a constituentof the corporation, but not the corpora-tion itself:

Where such representation is of the con-stituent alone, that person is the lawyer’ssole client, just as the lawyer represent-ing the corporation has that entity as hissole client. The lawyer has no attorney-client relationship with the person pay-ing the lawyer’s fees, and the lawyermust take care that his activities onbehalf of his client are not influenced bythat person. Id. And as regards attorney-client confidentiality, that obligation isowed to the constituent-client only, andnot to the person paying the lawyer’sfees. Id.

Thus, when representing a constituentwho participates in an organization’smanagement, a lawyer should be sensi-tive to the false impression that becausehe has been welcomed into the innersanctum of an organization, he is a “safe”person for non-client constituents tospeak with and that his loyalty to theorganization can be assumed. It is incum-bent upon an attorney in that situation tomake clear to other organization con-stituents who are not his client, beforebeing asked to convey information thatmay constitute corporate confidences orsecrets, that the lawyer’s interests may beseparate from those of the entity.

All this does not mean, however, that aclient-constituent’s potential adversity toan entity will always be as harsh or directas the adversity of an outsider, for theadversity may be tempered by the con-stituent’s legal obligations to the entity.Thus, the lawyer, as the client’s agent,should bear in mind the hazards of assist-ing a client in violating any of the client’sobligations to the entity because thatcould increase, rather than lessen, theclient’s potential liability. The client’sobligations may include, depending onvarious circumstances and applicable law,a duty to maintain trade secrets or otherconfidential information. “Whistle-blow-er” laws may or may not apply to variousorganizations and various circumstances.Thus, a lawyer for a constituent may carrysome obligation to protect the interests ofthe organization because his client mayhave such obligations.

266 THE DISTRICT OF COLUMBIA BAR September 2005

1 That the corporation or other entity is respon-sible for the payment of the lawyer’s fee is notdeterminative. Rule 1.8(e) provides as followswith respect to payment of fees from someoneother than the client:

(e) a lawyer shall not accept compensationfor representing a client from one other thanthe client unless:

(1) the client consents after consultation;(2) there is no interference with the lawyer’sindependence of professional judgment orwith the client-lawyer relationship; and(3) information relating to representation of aclient is protected as required by Rule 1.6.

2 Thus, we do not address circumstances inwhich a lawyer represents an organization, and indoing so, assists a constituent whose interests areidentical to those of the organization.

3 On occasion, however, dual representation ofan organization and a constituent can take place.Specifically, Rule 1.13(c) states:

A lawyer representing an organization mayalso represent any of its directors, officers,

employees, members, shareholders, or otherconstituents, subject to the provisions ofRule 1.7. If the organization’s consent to thedual representation is required by Rule 1.7,the consent shall be given by an appropriateofficial of the organization other than theindividual who is to be represented, or by theshareholders.

4 As noted above, in rare instances a dual repre-sentation may be appropriately intended and effec-tuated. These representations should similarly bedefined in scope.

The lawyer should consider these fac-tors and chart a course that is consistentwith his client’s interests and the client’slegal duties to the organization.

III. Undertaking New Matters Adverseto the Organization

Finally, we address the extent to whicha lawyer who represents, or has repre-sented, an organization’s constituent on apersonal basis properly can undertakenew matters that are potentially adverseto the organization. In other words, wenow discuss whether, for conflict ofinterest purposes, the lawyer should con-sider the organization as the client, eventhough the lawyer represented only theconstituent.

Rule 1.7(b)(1) provides:

Except as permitted by paragraph (c)below, [related to consent] a lawyershall not represent a client with respectto a matter if:

(1) That matter involves a specific partyor parties, and a position to be taken bythat client in that matter is adverse to aposition taken or to be taken by anotherclient in the same matter, even thoughthat client is unrepresented or represent-ed by a different lawyer. (Emphasisadded.)

As discussed above, if the lawyer rep-resents an organization’s constituent per-sonally then the entity itself is not“another client” under Rule 1.7(b)(1) in aliteral or automatic sense. The inquiry,however, must go deeper and examinethe de facto relationships that arise out ofthe representation. Indeed, there aremany apt analogies in converse situa-tions, in which a lawyer’s representationof a large entity has been deemed toimpact potential conflicts with con-stituents of the entity. We believe thesesituations are pertinent to an analysis ofthe present inquiry.

In addition, apart from the potentialexistence of a direct conflict under Rule1.7(b)(1), a lawyer representing a con-stituent, and considering a new represen-tation adverse to the organization, shouldalso consider whether his or her represen-tation creates a conflict under Rule1.7(b)(2), 1.7(b)(3) or 1.7(b)(4).5 Comment

14 to Rule 1.7 frames the issue well:

The propriety of [undertaking a new] rep-resentation must also be tested by refer-ence to the lawyer’s obligation underRule 1.6 to preserve confidences andsecrets and to the obligations imposedby paragraphs(b)(2) through (b)(4) ofthis rule. Thus, absent consent underRule 1.7(c), such adverse representationordinarily would be improper if:

(a) the adverse matter is the same as, orsubstantially related to, the matter onwhich the lawyer represents the organi-zation client.

(b) during the course of representationof the organization client the lawyer hasin fact acquired confidences or secrets(as defined in Rule 1.6(b)) of the organ-ization client or an affiliate or con-stituent that could be used to thedisadvantage of any of the organizationclient or its affiliate or constituents, or

(c) such representation seeks a resultthat is likely to have a material adverseeffect on the financial condition of theorganization client.

Similarly, in Opinion No. 305, thisCommittee stated that representation of atrade association does not per se createan attorney-client relationship with allmembers of the trade association, butalso does not per se preclude it. Instead,the surrounding circumstances, includ-ing the existence of disclosures of confi-dential information to the lawyer, mustbe assessed:

[D]etermining whether and to whatextent the individual member hasbecome a client requires careful exami-nation of all of the circumstances of thefirm’s relationship to and representationof the trade association.” ABA EthicsOp. No. 92-365. An attorney-client rela-tionship may be formed in the absenceof an express agreement, and is “notdependent on the payment of fees[or] . . . upon the execution of a formalcontract.” Westinghouse Elec. Corp. v.Kerr-McGee Corp., 580 F.2d 1311,1317 (7th Cir.), cert. denied, 439 U.S.955 (1978). What is most important iswhether the member of the trade associ-ation disclosed confidential informationto the association’s lawyer, and the sur-

rounding circumstances and expecta-tions. ABA Ethics Op. No. 92-365. Seealso Westinghouse, 580 F.2d at 1319-1320; Glueck v. Jonathan Logan, Inc.,653 F.2d 746, 749 (2d. Cir. 1981).

In ABA Formal Opinion No. 95-390,“Conflicts of Interest in the CorporateFamily Context,” the ABA stated:

[W]hen a lawyer is considering whetherhe can assume the representationadverse to a corporate affiliate of aclient, he must consider not merely theterms of his engagement to that clientbut in addition whether the circum-stances are such, that the affiliate hasreason to believe, on the basis of thelawyer’s dealings with it, that it has aclient-lawyer relationship with thelawyer.

When the constituent is a high-levelofficial in the organization, it is signifi-cant that he may be embedded in thehighest level of the decision-makingprocess. Accordingly, it is likely that alawyer representing such a constituentwill be privy to information as to theorganization as a whole and its finances,and may acquire knowledge of mattersthat are of great sensitivity to the organi-zation.

Accordingly, in applying the test ofaccessibility to confidential client infor-mation, a lawyer representing such a con-stituent may find himself or herself privyto such knowledge. Given the cross-fer-tilization with upper management and thesensitivity of the issues likely to beencountered in such a representation, theorganization may have a reasonableexpectation that the lawyer will not beadverse to it in another matter. Whileagain, the determination will be fact-dependent, the lawyer representing ahighly placed constituent should be sen-sitive to such potential conflicts.

Finally, once the constituent represent-ed personally has become a former clientrather than a current client, Rule 1.9,rather than Rule 1.7, will apply.6 Hereagain, the test for whether the organiza-tion should be deemed a “former client”for purposes of this rule should be thesame as for Rule 1.7 discussed above. Inthe case of a former representation, how-ever, there will be the additional factor of

September 2005 THE DISTRICT OF COLUMBIA BAR 267

5 Those portions of the rule provide:Except as permitted by paragraph (c) below,[related to consent] a lawyer shall not repre-sent a client with respect to a matter if: . . .(2) Such representation will be or is likely tobe adversely affected by representation ofanother client;

(3) Representation of another client will beor is likely to be adversely affected by suchrepresentation; or(4) The lawyer’s professional judgment onbehalf of the client will be or reasonably maybe adversely affected by the lawyer’s respon-sibilities to or interests in a third party or thelawyer’s own financial, business, property,or personal interests.

6 Rule 1.9 provides as follows:A lawyer who has formerly represented aclient in a matter shall not thereafter repre-sent another person in the same or substan-tially related matter in which that person’sinterests are materially adverse to the inter-ests of the former client unless the formerclient consents after consultation.

whether the new matter is “substantiallyrelated” to the prior matter. See Comment2 to Rule 1.9.

Approved: April 2005Published: April 2005

Opinion 329

Non-Profit Organization Fee Arrange-ment With an Attorney to Whom ItRefers Matters

● An arrangement by a non-profitorganization to pay an attorney an annual$10,000 retainer fee for handling smallcompensation claims for day laborers on acontingent fee basis and then receive backthe first $10,000 the attorney receiveseach year in fees to cover the organiza-tion’s costs does not violate Rule 5.4(a) solong as the reimbursements are restrictedto recouping out of pocket expenses andare not tied to the amount of fees collect-ed by the attorney in the representation ofa particular client or clients.

Applicable Rules● Rule 5.4(a) (Lawyer May Not Share

Legal Fees With a Non-Lawyer)● Rule 7.1(b)(5) (Consideration May be

Paid by a Lawyer to an Intermediary forthe Referral of Legal Business)

Inquiry

The inquirer, a District of Columbianon-profit entity, would like to assist daylaborers in pursuing small workers’ com-pensation claims. The non-profit haslearned from experience that the daylaborers have a difficult time findingcompetent counsel who are willing toprovide representation in these types ofcases. To help facilitate adequate repre-sentation, the non-profit proposes to paya qualified attorney a $10,000 annualretainer for handling these matters; allowthe attorney to take a 10 percent contin-gency fee from client awards; and thenrequire the attorney to pay the non-prof-it the first $10,000 he receives in contin-gent fees each year to permit it to recoupits out-of-pocket retainer costs. Otherthan recouping out-of-pocket costs, thefinancial arrangement the non-profit haswith the attorney is not in any way tied tothe amount of fees collected by the attor-ney in the representation of a particularclient. The non-profit has asked theCommittee to opine whether thisarrangement complies with the DC Rulesof Professional Conduct. The Committee

concludes that it does for the reasons setforth below.1

Discussion

Rule 5.4(a) of the DC Rules states that“a lawyer or law firm shall not share legalfees with a non-lawyer” except in certainnarrow circumstances not pertinent tothis inquiry. This provision could beinterpreted to preclude a lawyer fromever sharing a portion of the fees that thelawyer receives from a client with anorganization that made the referral. DCRule 7.1(b)(5), however, indicates other-wise. It specifies that referral feesarrangements with intermediaries can beproper if the lawyer “takes reasonablesteps to ensure that the potential client isinformed of: a) the consideration, if any,paid or to be paid by the lawyer to theintermediary, and b) the effect, if any, ofthe payment to the intermediary on thetotal fee to be charged.” In addition,Comment 6 to Rule 7.1 notes that “alawyer may participate in lawyer referralprograms and pay the usual fees chargedby such programs.”

There appears to be an inherent con-flict, therefore, between the flat prohibi-tion on fee-sharing between lawyers andnon-lawyers found in Rule 5.4 and theimplied acceptance of sharing fees withnon-lawyers found in Rule 7.1. Numer-ous ethics opinions here and in otherjurisdictions have examined this conflictto determine whether fee-sharingarrangements are permitted under certaincircumstances. Generally, these opinionshave looked to the public policies thatunderlie Rule 5.4 and have determinedthat the arrangements are permissible ifthey comply with them. In reaching thisconclusion, the ethics opinions, includingone by this Committee, have focused ontwo of the policy considerations: 1)whether a proposed arrangement wouldinterfere with a lawyer’s independentjudgment; and 2) whether refusing to per-mit the arrangement would result infewer legal resources being available forthose in need of them.

This Committee opined in 2001 that alawyer may “participate in a federal gov-ernment referral service that negotiatescontracts to provide legal services to fed-

eral agencies where that programrequires the lawyer to submit one percentof the legal fees received through the ser-vice to the government office in order tofund the program.” D.C. Legal EthicsComm., Op. 307 (2001). The Committeeconcluded that the arrangement wasacceptable even though it would involvefee-sharing between lawyers and non-lawyers because of the policy considera-tions underlying the rule. Id. TheCommittee noted that Comment 6 toRule 7.1 “suggests that the drafters of theD.C. Rules were not particularly con-cerned about the manner in which non-profit lawyer referral services structuredtheir fee arrangements; their principalfocus was on preventing non-lawyerintermediaries from using their powerover lawyers who rely on them for busi-ness referrals to influence those lawyers’‘professional independence of judg-ment.’” Id. (citing Rule 5.4 cmt. 1). TheCommittee then concluded that the pro-posed arrangement obviated this concernbecause the inquiring organization pre-sented “no risks of interfering with partic-ipating lawyers’ independent professionaljudgment.” Id.2 In addition, the Commit-tee pointed out that the referring organi-zation “is a non-profit service aimed atachieving important public policy objec-tives, including holding down the cost totaxpayers of legal services provided togovernment agencies.” Id.3

Opinion 307 cited several opinionsfrom other jurisdictions that have alsopermitted fee-sharing between lawyersand non-lawyer non-profits. For exam-ple, it referred to a Michigan decisionthat held that “a not-for-profit lawyer

268 THE DISTRICT OF COLUMBIA BAR September 2005

1 For the purposes of this Opinion, the Commit-tee is assuming that the non-profit is not otherwiseprofiting from its relationship with the attorney.Under § 32-1530 of the D.C. Code, it is unlawfulfor a person to make it a “business” to solicitemployment for a lawyer in respect of any claimsor award for workmen’s compensation. Thearrangement as described to the Committee wouldnot be proscribed by this Code provision.

2 D.C. Legal Ethics Comm., Op. 233 alsoaddresses the policies behind the ban on fee-shar-ing: “The bans on fee-sharing and partnerships withnonlawyers have long been a feature of codes oflegal ethics. They were motivated by a number ofconcerns, chiefly that nonlawyers might throughsuch arrangements engage in the unauthorized prac-tice of law, that client confidences might be com-promised, and that nonlawyers might control theactivities of lawyers and interfere with the lawyers’independent professional judgment.” In the opin-ion, payments of “success” fees to non-lawyer con-sultants were acceptable even though the paymentswere passed through a law firm because the pay-ment procedure was “a formality of no conse-quence.” D.C. Legal Ethics Op. 233 (1993).

3 See also D.C. Legal Ethics Comm., Op. 253(1994) (holding that a referral arrangementbetween an insurance company and a law firm thatinvolved payments made for each referred case“would not run afoul” of rules 5.4 and 7.1 eventhough the referral fee “would be paid by the firmfrom its percentage contingency fee,” but that thearrangement could fail if there are potential conflictof interest problems under rules 1.7 and 1.3).

referral service registered with the statebar may charge as a referral fee a percentof the fee collected by the referred.”Mich. State Bar Comm. on Prof. andJudicial Ethics, Op. RI-75 (1991). In ren-dering its opinion, the Michigan commit-tee pointed to the same policy reasons forits decision, noting that so long as thereferral service takes measures to protectagainst undue influence on the lawyers,“the professional judgment of the lawyeris not interfered with and the rule againstfee-splitting with nonlawyers is not vio-lated.” Id.

Opinion 307 also referred to Pennsyl-vania, Arkansas and Virginia opinionswhich concluded that lawyer referral ser-vices operated by local bar associationsmay accept a percentage of fees earnedby lawyers from referred clients. See Pa.Bar Ass’n Ethics Op. 93-162 (1993);Ark. Bar Assoc., Op. 95-01 (1995); andVa. Legal Ethics Comm. Op. 1744(2001). These opinions noted that a num-ber of jurisdictions help fund their legalreferral services through the return offees from referred lawyers. TheArkansas Bar Association further statedthat “the increase in revenue producedfor the Bar Association will help main-tain this public service.” Ark. Op. 95-01.The Virginia opinion also provides sup-port for the idea that fee-sharing is per-missible when the arrangement wouldnot interfere with a lawyer’s profession-al judgment and furthers the public poli-cy of providing legal services to those inneed of them. It concluded that a privatepractitioner who received pro bono workfrom a non-profit association couldreturn court-awarded attorney’s fees tothe association. Va. Legal Ethics Comm.Op. 1744 (2001). In reaching this con-clusion, the committee pointed out that“a legal ethics rule prohibiting lawyersfrom sharing court awarded fees withpublic interest groups would jeopardizethis important source of funding.” Id.4

The American Bar Association hasindicated on at least three occasions thatsimilar fee sharing arrangements did notviolate its earlier Code of ProfessionalResponsibility. In Formal Opinion 291,the ABA determined that “a bar associa-tion may require members of a lawyerreferral panel to help finance the serviceeither by a flat charge or a percentage of

fees collected.” ABA Formal Op. No.291 (1956). In addition, the ABA con-cluded that it was “ethically proper” fora lawyer referral service to require attor-neys to return all or part of consultationfees, as well as a percentage of feesearned, to the service. ABA Informal Op.1076 (1966). Finally, Formal Opinion93-374 noted that a lawyer may performpro bono litigation services and thenshare a portion of any court awarded feeswith the non-profit organization thatreferred the lawyer to the client. ABAFormal Op. 93-374 (1993).

The Restatement of the Law Govern-ing Lawyers reflects the same view thatconcerns about fee-sharing are not pres-ent when fees are shared with a referringnon-profit organization. The Restatementcontains a provision similar to Rule5.4(a) of the D.C. Rules. See Restatement(Third) of The Law Governing Lawyers §10(3) (1998) (“a lawyer or law firm maynot share legal fees with a person notadmitted to practice as a lawyer,” exceptin certain irrelevant circumstances).Comments to Section 10 indicate that thefee-sharing prohibition should only beinterpreted strictly where policy concernswarrant a narrow interpretation. Com-ment b notes, for example, that “this sec-tion should be construed so as to preventnon-lawyer control over lawyers’ ser-vices, not to implement other goals suchas preventing new and useful ways ofproviding legal services or making surethat non-lawyers do not profit indirectlyfrom legal services in circumstances andunder arrangements presenting no signif-icant risk of harm to clients or third per-sons.” Id. § 10 cmt. b. In addition, thecomments note that although fee-sharinggives power to the non-lawyer referrer,“that incentive is not present when thereferral comes from a nonprofit referralservice.” Id. at cmt. d.5

Case law provides further support forthe view that sharing fees between alawyer and a referral service is accept-able under the various rules of profes-sional conduct. In Emmons v. State Barof California, 6 Cal. App. 3d 565 (1970),for example, a California court denied

the plaintiff’s request for a declaratoryjudgment that would allow the plaintiffto avoid paying a one-third referral fee tothe bar association’s lawyer referral ser-vice.6 See Id. Similar to the opinionsissued by the various states’ ethics com-mittees, the court in Emmons relied onpolicy reasons for permitting this fee-splitting. The court noted that “there arewide differences—in motivation, tech-nique, and social impact—between thelawyer reference service of the bar asso-ciation and the discreditable fee-split-ting” prohibited by the rules. Id. at 573.Fee-splitting that should not be allowed“carries with it the danger of competitivesolicitation; poses the possibility of con-trol by the lay person, interested in hisown profit rather than the client’s fate;facilitates the lay intermediary’s tenden-cy to select the most generous, not themost competent, attorney.” Id. at 573-74.On the other hand, fee-splitting with thebar association’s lawyer reference ser-vice was permissible because “the barassociation seeks not individual profitbut the fulfillment of public and profes-sional objectives. It has a legitimate,nonprofit interest in making legal ser-vices more readily available to the pub-lic.” Id. at 574.7

While these opinions, court decisions,and standards suggest strong support forthe proposed arrangement, there is oneaspect, namely the fact that the attorneywill be representing the day laborers on acontingent fee basis, that requires furtheranalysis. In an opinion rendered in 1998,this Committee determined that Rule 5.4precluded a lawyer from making pay-ments to a referral service if the pay-ments are “contingent upon, and tied to,the lawyer’s receipt of revenue from thereferred legal business and is tied to theamount of those fees.” D.C. Legal EthicsComm., Op. 286 (1998). According tothis Opinion, the only departure from theban on fee-sharing that Rule 7.1 permitsis the authorization of payments to refer-ring organizations when the payments arenon-contingent and “paid regardless ofthe success or outcome” because that

September 2005 THE DISTRICT OF COLUMBIA BAR 269

4 See also Va. Legal Ethics Comm. Op. 1751(2001) (noting that many jurisdictions acceptarrangements permitting a referral service toreceive a percentage fee from referred attorneys,and stating that this widespread acceptance “indi-cates a strong support by the various bars forincreasing public access to legal services”).

5 Other provisions of the Restatement thataddress fees similarly indicate concern witharrangements that might compromise a lawyer’sindependence. See e.g. id. § 47 cmt. b (“the tradi-tional prohibition of fee-splitting among lawyers isjustified primarily as preventing one lawyer fromrecommending another to a client on the basis ofthe referral fee that the recommended lawyer willpay, rather than the lawyer’s qualifications”); id. §134 cmt. c (noting that a lawyer’s loyalty to aclient must not be compromised by a third partysource of payment).

6 This case has been widely cited by ethics com-mittee opinions. See, e.g., D.C. Legal EthicsComm., Op. 307; Va. Op. 1751; Ark. Op. 95-01;Pa. Op. 93-162; Mich. Op. RI-75.

7 Kean v. Stone, 966 F.2d 119 (3rd Cir. 1992),also supports the idea that fee-splitting between alawyer referral service and a lawyer may be per-missible. Kean holds that a union may “benefitindirectly from the proceeds of law practice” wherelitigation fees are “paid into a separate accountused solely by lawyers for litigation purposes.” 966F.2d at 123.

does not represent a division of legalfees. Id.8 A later opinion from this Com-mittee relating to soliciting plaintiffs forclass action lawsuits or obtaining legalwork through Internet-based web pagesexpressed approval of this interpretationof the rules. See D.C. Legal Ethics, Op.302 (2000) (agreeing with the view that“any fee a law firm pays to a serviceprovider [on the internet] cannot belinked to or contingent on the amount oflegal fees the lawyers obtain from a post-ed project. . . since such an arrangementwould violate D.C. Rule 5.4’s prohibitionagainst lawyers sharing legal fees withnon-lawyers”).

These two opinions could be interpret-ed to preclude any fee-sharing arrange-ment where the fees are contingent upona lawyer’s receipt of revenue from areferred client. But the opinions are nar-rower than that and do not addresswhether a non-profit that refers its clientsto lawyers may recoup its out-of-pocketcosts in situations where the lawyer col-lects sufficient funds to pay them fromthe various contingent fees he or shereceives.9 This fee arrangement is differ-ent from the one precluded in Opinion286 and referred to in Opinion 302because it is not tied to the amount of feescollected by the lawyer in his or her rep-resentation of a particular client. In addi-tion, both of these opinions pre-datedOpinion 307 which supports a fee-split-ting arrangement which is far more anal-ogous to our situation than those referredto in Opinions 286 or 302.

This Opinion, however, is limited tothe specific facts of this Inquiry andshould not be interpreted as a deviationfrom previously-expressed concernsabout contingent fee-sharing arrange-ments which are explicitly linked to theamounts of fees collected by an attorney

in the representation of a specific clientor specific clients.

It is the opinion of the Committee thatRule 5.4’s prohibition on fee-sharingdoes not preclude a non-profit fromrecouping its out-of-pocket expenses byrequiring a lawyer to whom cases arereferred to repay the expenses if suffi-cient funds are received from contingentfees obtained from various representa-tions. Opinion 307 makes it clear that:

[T]he drafters of the D.C. Rules werenot particularly concerned about themanner in which non-profit lawyerreferral services structured their feearrangements; their principal focus wason preventing non-lawyer intermedi-aries from using their power overlawyers who rely upon them for busi-ness referrals to influence thoselawyers’ professional independence ofjudgment.

D.C. Rule 5.4, Comment [1].Because the particular structure of the

relationship between the non-profit andthe lawyer here is comparable to thatwhich normally exists with a lawyer anda non-profit referral service, the Commit-tee concludes that the Committee’srationale for its Opinion 307 appliesequally to this type of arrangementbecause it: 1) does not interfere with thelawyer’s independent judgment;10 and 2)will benefit the public by facilitating theprovision of legal services to those whoare in need of them.11 As pointed out in

the Committee’s Opinion 225, whichconcluded that a prepaid legal servicesplan complied with the Rules of Profes-sional Conduct:

Nothing in the Rules of ProfessionalResponsibility purports to limit or dis-courage the use of innovative ways ofproviding legal services. . . . “Innovativeapproaches and fresh ideas in this areamay result in the availability of neces-sary low-cost legal services to individu-als who could not previously afford toemploy an attorney.”

As part of the arrangement, however,the inquiring non-profit and the attorneyproviding the services, must comply withthe notice provisions set forth in Rule7.1(b)(5).

Approved: May 2005Published: June 2005

Opinion No. 330

Unbundling Legal Services

● The provision of legal servicesthrough unbundled legal service arrange-ments is permissible under D.C. Rule 1.2,provided the client is fully informed ofthe limits on the scope of the representa-tion and those limits do not bar the provi-sion of competent service. Not only theduty of competence, but all the duties thatgenerally attach to lawyer-client relation-ships will apply to such arrangements,including diligence, loyalty, communica-tion, confidentiality and avoidance ofconflicts of interest. Opposing counselwho is dealing with a party who is pro-ceeding pro se should treat that party asunrepresented unless and until the partyor a lawyer for the party provides reason-able notice that the party has obtainedlegal representation. The D.C. Rules ofProfessional Conduct do not articulateany requirement that attorneys must iden-tify themselves to the court if they pro-vide assistance to a pro se litigant in thepreparation of documents to be filed in

270 THE DISTRICT OF COLUMBIA BAR September 2005

8 This opinion relied in part on an opinionissued by the Florida Bar Professional Ethics Com-mittee, which held that “a nonlawyer hired toengage in permissible marketing activities onbehalf of a lawyer may be paid a straight salary,”but that “if commissions would be tied to legal feesderived from business brought to the firm by thenonlawyer’s efforts, payment of those commissionswould constitute a violation of [the Florida rulethat] forbids a lawyer to divide a legal fee with anonlawyer.” Fla. Bar Prof. Ethics Comm., Op. 89-4 (1989).

9 The Committee does not address the questionwhether the attorney must return any portion of theretainer that is not utilized to provide legal servicesto day laborer clients. The situations in which all ora portion of the retainer needs to be returned aregoverned by the Committee’s Opinion 264. It is ourunderstanding that this is a retainer to ensure avail-ability which is explicitly permitted in that Opinion.

10 That the non-profit in question does notappear to be affiliated with any bar associationshould not affect the non-profit’s ability to receivea portion of fees from referred lawyers. See Prof.Ethics Comm. of the State Bar of Tex., Op. 502(1994) (holding that a non-profit service that wasnot established by a bar association may referclients to a lawyer and then receive a portion of thefee collected by the lawyer in part because Texaspublic policy supports the establishment of lawyerreferral services, and the fees received through thisarrangement would benefit this policy).

11 It should also be noted that both ethics com-mittees and courts have indicated that if an attorneywere to raise a client’s fee to cover the cost ofreturning some of the funds to a referral service, thearrangement would be ethically unacceptable. See,e.g., Cal. State Bar Ethics Op. 1983-70 (1983)(holding that a lawyer referral service may requireattorneys to return to the service a percentage of allfees above a minimum threshold that the attorneyreceives from referred clients, but that the attorneymay not raise the legal fees to cover the amountpaid to the service, as “such arrangements shouldbe structured in order to avoid the risk of increasedcosts to the clients”); Alpers v. Hunt, 86 Cal. 78, 88(Cal. 1890) (holding that a contract made with anon-lawyer through a third party who wouldreceive one third of any recovered funds was invalid in part because “such a practice would tend

to increase the amounts demanded for professionalservices. In such a case an attorney would beinduced to demand a larger sum for his services, ashe would have to divide such sum with a third per-son”). In addition, The D.C. Rules of ProfessionalConduct require that any fee charged to a client bereasonable. See D.C. Rules of Prof’l Conduct R.1.5. See also American Bar Association Formal Op.00-420 (2000); Blum v. Stenson, 465 U.S. 886(1984). However, by allowing an attorney only a10% contingency fee and by requiring the attorneyto return only the $10,000 that had been advanced,the proposed arrangement avoids offending thesefee-based concerns.

court, but attorneys who provide suchassistance to pro se litigants should checkwhether any other source of law in therelevant jurisdiction imposes a disclosurerequirement.

Applicable Rules● Rule 1.1 (Competence)● Rule 1.2 (Scope of Representation)● Rule 1.3 (Diligence and Zeal)● Rule 1.4 (Communication)● Rule 1.6 (Confidentiality)● Rule 1.7, 1.9 (Rules on Conflict of

Interest)● Rule 3.3 (Candor toward the Tribunal)● Rule 4.2 (Communication between

Lawyer and Opposing Parties)● Rule 4.3 (Dealing with Unrepre-

sented Person)

Inquiry

In this opinion we join the ethics com-mittees of many other jurisdictions inexamining the practice of “unbundling”legal services. “Unbundling” refers to theseparation of the tasks full service lawyerstypically conduct into their discrete com-ponents, only some of which the clientcontracts with the lawyer to provide.1Examples of unbundled service arrange-ments include a lawyer who drafts a com-plaint or an appellate brief for a client tofile pro se, counsels a client through anuncontested divorce without filing a noticeof appearance in the case, or advises asmall business about how to institute debtcollection procedures or drafts a contractfor it. See ABA Bar Association Section ofLitigation, Report of the Modest MeansTask Force, Handbook on Limited Scope

Legal Assistance 16-46 (2003) [hereinafterABA Task Force] (giving numerous exam-ples). Advocates argue that such arrange-ments offer creative means of addressingthe current crisis in the provision of legalservices to persons of modest means. Id. at8 (noting a finding that at least one party isunrepresented in 90% of domestic rela-tions cases in the District of Columbia). Bypaying for only some of the services a fullservice lawyer would provide, clients maysave considerable sums. Even moreimportantly, clients of modest means maybe able to afford to obtain legal servicesthat otherwise would be inaccessible tothem. For example, a client might not beable to enter into a full service representa-tion arrangement that required up-frontpayment of a retainer of several thousanddollars, but could afford to pay a lawyer atthe same billing rate for selected serviceson a pay-as-you-go basis.

As all commentators who have ad-dressed the increasing popularity of un-bundling arrangements have noted,however, such practices raise significantethics issues. We therefore write to provideguidance on questions the unbundling oflegal services may raise under the D.C.Rules of Professional Conduct.

Discussion

The first question is whether theunbundling of legal services is permissi-ble at all under the D.C. Rules. We areconvinced that it is. In so concluding, wejoin all the ethics committees and judicialopinions of other jurisdictions of whichwe are aware in reasoning that a clientmay, if fully informed and freely consent-ing, contract for limited service arrange-ments with a legal services provider.2This conclusion rests on the express lan-guage of D.C. Rule 1.2(c), which statesthat “a lawyer may limit the objectives ofthe representation if the client consents

after consultation.” Unbundling legal ser-vices is simply a limiting of the objectivesof a lawyer-client relationship. In thissense it is neither particularly novel norparticularly troubling.3

It is likewise clear, however, that theprovision of legal services throughunbundling arrangements cannot sweepaway the applicable rules of professionalconduct. We recently considered similarissues in Opinion 316, in which weexamined the provision of legal informa-tion by lawyers through internet chatroom communications. As we notedthere, once the provision of even limitedlegal services gives rise to a client-attor-ney relationship, all the usual duties ofthe D.C. Rules of Professional Conductattach to that relationship.4 D.C. EthicsOp. 316 at 231. These duties includecompetence, diligence, communication,confidentiality and the avoidance of con-flicts of interest. Id.

Competence

D.C. Rule 1.1 provides that lawyersmust provide competent representation totheir clients, and the unbundling of legalservices in no way obviates lawyers’duties of competence. In other words, thescope of the services may be limited buttheir quality may not. When hired todiagnose legal problems, an attorney pro-viding services under an unbundlingarrangement must be as thorough in iden-tifying legal issues as an attorney whointends to continue with a case throughits conclusion. See D.C. Rule 1.1 com-ment [2] (“Perhaps the most fundamentallegal skill consists of determining whatkind of legal problems a situation mayinvolve”). An attorney who discovers thata client has a legal problem that falls out-side the scope of the limited serviceagreement should inform her client of theproblem, the fact that she is not repre-senting the client regarding it, and thatthe client should consider seeking inde-pendent legal representation. See LosAngeles County Bar Assoc. Ethics Op.502, at 1 (Nov. 4, 1999) (attorney in lim-ited scope arrangement “has a duty toalert the client to legal problems which

September 2005 THE DISTRICT OF COLUMBIA BAR 271

1 One leading proponent has explainedunbundling as follows:

[L]awyers generally offer a full service pack-age of discrete tasks that encompass tradi-tional legal representation. More specifically,the lawyer implicitly or explicitly undertakesthe following services on behalf of a client:(1) gathering facts, (2) advising the client, (3)discovering facts of the opposing party, (4)researching the law, (5) drafting correspon-dence and documents, (6) negotiating, and(7) representing the client in court.

When a client hires a lawyer, generallyboth client and lawyer assume that thelawyer will perform these services in a full-service package. . . . Unbundling these vari-ous services means that the client can be incharge of selecting from lawyers’ servicesonly a portion of the full package and con-tracting with the lawyer accordingly.

Forrest S. Mosten, “Unbundling of Legal Servicesand the Family Lawyer,” 28 Fam. L. Q. 421 (1994).A recent symposium also considers the ethicalissues involved in unbundling arrangements. SeeSymposium Issue, The Professional Lawyer, 2004,at 59-106.

2 A sampling of such opinions includes Lerner v.Laufer, 359 N.J. Super. 201, 217, 819 A.2d 471,482 (N.J. Super. Ct. App. Div. 2003) (“the law hasnever foreclosed the right of competent, informedcitizens to resolve their own disputes in whateverway may suit them”); Alaska Bar Assoc. Ethics Op.No. 93-1 (May 25, 1993) (lawyer may ethicallylimit the scope of his representation but must noti-fy client clearly of the limitations on the represen-tation and the potential risks the client is taking bynot having full representation); Arizona State BarAssoc. Ethics Op. No. 91-03, at 4 (Jan. 15, 1991)(lawyer may agree to represent a client on a limitedbasis as long as the client consents after consulta-tion and representation is not so limited in scope asto violate ethics rules); ABA Informal Op. 1414(June 6, 1978) (lawyer may give advice and assistin the preparation of pleadings for litigants who areotherwise proceeding pro se).

3 See, e.g., Colo. Bar Ass’n Ethics Comm., For-mal Op. 101, at 2 (Jan. 17, 1998) (noting examplesof “commonplace and traditional” arrangementsunder which clients ask their lawyers “to providediscrete legal services, rather than handle allaspects of the total project”).

4 See also ABA Task Force, at 7 (lawyers whoprovide limited service assistance “create attorney-client relationships with the people whom theyhelp”).

are reasonably apparent, even thoughthey fall outside the scope of retention,and to inform the client that the limita-tions on the representation create the pos-sible need to obtain additional advice,including advice on issues collateral tothe representation”).5

Another consideration is whether amatter can be handled competentlythrough a limited service arrangement.Because of the limits short term or limit-ed purpose arrangements may place on alawyer’s ability to assist the client withcomplex legal problems, some cases maynot be appropriate for unbundling. TheABA Ethics 2000 Commission revisionto Model Rule 1.2(c) thus provides that alawyer may limit the scope of representa-tion only “if the limitation is reasonableunder the circumstances,” and in accom-panying comment [6] gives the followingexplanatory example:

If, for example, a client’s objective islimited to securing general informationabout the law the client needs in order tohandle a common and typically uncom-plicated legal problem, the lawyer andclient may agree that the lawyer’s ser-vices will be limited to a brief telephoneconsultation. Such a limitation, howev-er, would not be reasonable if the timeallotted was not sufficient to yieldadvice upon which the client could rely.

The ABA Task Force gives the followingadditional advice: “Lawyers should con-sider several factors in determiningwhether limited representation is appro-priate, including the capacities of theclient, the nature and importance of thelegal problem, the degree of discretionthat decision-makers exercise in resolv-ing the problem, the type of dispute-reso-lution mechanism, and the availability (ornot) to the client of other self-helpresources.” ABA Task Force at 59.6

Also important is the client’s under-standing of the scope of the services to beprovided under an unbundling arrange-ment. Because the tasks excluded from alimited services agreement will typicallyfall to the client to perform or not getdone at all, it is essential that clientsclearly understand the division of respon-sibilities under a limited representation

agreement. The D.C. Rules generallyrequire only a written statement of thebasis of an attorney’s fee, but not individ-ualized written retainers or representationagreements. See D.C. Rule 1.5(b) &comment [2]. Particularly in the contextof limited-representation agreements,however, a writing clearly explainingwhat is and is not encompassed withinthe agreement to provide services will behelpful in ensuring the parties’ mutualunderstanding. See D.C. Ethics Op. 238(1993) (requiring attorney to state inwriting how additional consultation timewould be charged to a client).

Conflicts of Interest

There are few precedents consideringconflicts of interest issues in the limitedservice representation context, but arecent opinion of the Association of theBar of the City of New York Committeeon Professional and Judicial Ethics(“Committee”) provides helpful prelimi-nary guidance. In Opinion 2005-01, theCommittee considered two bar associa-tion pro bono programs under whichlarge firm commercial lawyers provideinitial legal consultations, and sometimessome additional representation, to indi-viduals seeking to file Chapter 7 bank-ruptcy petitions. The inquirer explainedthat it would be infeasible for the probono lawyers to conduct a complete con-flicts check prior to every consultation tosee if any creditor of the prospectiveclient was a client of the pro bonolawyer’s firm. In considering this issue,the Committee examined evidence abouthow often Chapter 7 debtors end up incontested proceedings in which a creditorobjects to the discharge of the debt. Thestatistics showed that such contestedChapter 7 proceedings are rare. The Com-mittee therefore concluded that lawyersparticipating in the pro bono programshave a duty to avoid conflicts arisingfrom representing a client adverse to anexisting client of their firm, but that theycan generally satisfy this duty by deter-mining, in their initial interview with thedebtor, whether any unusual facts suggestdirect adversity with a particular creditorso as to require further investigation intowhether the creditor is the firm’s client.Moreover, the Committee observed, inthe rare case in which a client creditordoes object to the discharge of a debt orotherwise takes action adverse to theChapter 7 debtor, the pro bono lawyercannot represent the debtor unless bothclients consent to the dual representationafter full disclosure. In other words, the

low likelihood of adversity with anotherclient under the particular facts presentedlessens the extent of the conflicts investi-gation required in connection with an ini-tial consultation. Where such a conflict ismore likely, however, the rules do notchange simply because the representationof the second client involves a limitedservice arrangement.

In short, attorneys participating inunbundled service arrangements owe theduties of diligence, promptness, loyalty,and communication within the definedscope of the representation as does anylawyer under D.C. Rules 1.3 and 1.4,along with the duties of confidentialityand avoidance of conflicts of interestunder D.C. Rules 1.6, 1.7, and 1.9.7 SeeD.C. Ethics Op. 316 (attorney providingtailored legal advice rather than generallegal information over the internet maycreate an attorney-client relationshipand, in doing so, incurs the same dutiesof confidentiality and avoidance of con-flicts as an attorney providing face-to-face legal counseling).

Communication with Opposing Party

With respect to some issues, however,attorneys’ duties in the context of unbun-dled service arrangements are less clear.One such issue concerns communicationswith an opposing party. When an attorneyis assisting a client for some purposes butnot for others, the question may arise as towhether that client is “represented” forpurposes of D.C. Rule 4.2, which forbidslawyers to communicate directly with per-sons “about the subject of the representa-tion with a party known to be representedby another lawyer in the matter” withoutthe prior consent of the lawyer represent-ing such person. D.C. Rule 4.2(a).

When a lawyer provides only limitedor behind-the-scenes assistance to a liti-gant who has filed pro se, opposing coun-sel cannot be expected to be aware of thelawyer’s involvement. In such a situa-tion, opposing counsel acts reasonably in

272 THE DISTRICT OF COLUMBIA BAR September 2005

5 See also ABA Task Force, at 25 (“althoughrepresentation may be limited to an interview andadvice, the interview must be at least as thorough asfull-service representation”).

6 See also New York City Bar Ass’n Op. 2005-01 (“lawyer should independently evaluate whetherthe complexities of the case or the limitations of theclient make it unlikely that the client could effec-tively proceed pro se”).

7 We also note that under a currently proposedrevision to D.C. Rule 6.5, D.C. Rules 1.7 and 1.9will apply to lawyers who provide “short-term lim-ited legal services” to a client “under the auspices ofa program sponsored by a nonprofit organization orcourt” only if “the lawyer knows that the represen-tation of the client involves a conflict of interest,”and D.C. Rule 1.10 will apply “only if the lawyerknows that another lawyer associated with thelawyer in a law firm is disqualified by Rule 1.7 or1.9 with respect to the matter.” See District ofColumbia Bar Rules of Professional ConductReview Committee, Proposed Amendments to theDistrict of Columbia Rules of Professional Conduct:Report and Recommendations 179 (Jan. 31, 2005).

proceeding as if the opposing party is notrepresented, at least until informed other-wise.8 Even if the lawyer has reason toknow that the pro se litigant is receivingsome behind-the-scenes legal help, itwould be unduly onerous to place theburden on that lawyer to ascertain thescope and nature of that involvement. Wetherefore believe that the most reasonablecourse for an attorney dealing with aparty who is proceeding pro se is to treatthe party as not having legal representa-tion, unless and until the party or alawyer for the party provides reasonablenotice that the party has obtained legalrepresentation.

Disclosure of Involvement

The issue on which courts and ethicscommittees evaluating practices related tothe unbundling of legal services have hadthe most difficulty agreeing concerns theextent to which lawyers must disclosetheir involvement when they have provid-ed substantial assistance to a litigant indrafting documents that are to be filed incourt. Some opinions have concluded thatattorneys need not disclose their involve-ment in preparing court-filed documents;9others have concluded that attorneysshould disclose their involvement.10

After carefully examining the D.C.Rules and opinions from various jurisdic-tions, we conclude that nothing in theD.C. Rules of Professional Conductrequires attorneys who assist pro se liti-gants in preparing court papers to placetheir names on these documents or other-wise disclose their involvement. Attor-neys who provide limited-serviceassistance typically will not see thepreparation of documents through to theend and thus cannot control what is in thefinal document filed by the pro se liti-gant. See ABA Task Force at 75 (listingthis and other concerns identified in alawyer focus-group study). Some oppo-nents of the practice of “ghostwriting”court documents, as it is frequentlycalled, argue that the chief sin of thispractice is that it misleads the court intothinking a litigant is proceeding withoutlegal assistance and thus granting specialsolicitude to the litigant. This, however,is an issue for the courts to identify ifthey perceive a problem with the prac-tice. Some jurisdictions have undertakenspecific rule modifications to addresslawyers’ obligations in the context of pro-viding limited drafting assistance to oth-erwise pro se litigants,11 but, in theabsence of any such directives in theD.C. Rules, we decline to read into theman obligation concerning disclosure oflimited assistance.

In sum, in our opinion the provision oflegal services through unbundled legalservice arrangements is permissible

under D.C. Rule 1.2, provided the clientis fully informed of the limits on thescope of the representation and these lim-its do not prevent the provision of com-petent service. The duties that generallyattach to lawyer-client relationships,including those of competence, diligence,loyalty, communication, confidentialityand avoidance of conflicts of interest,apply to such relationships. If a party isproceeding pro se, opposing counselshould treat that party as unrepresentedunless and until that counsel receives rea-sonable notice of representation from theparty or her lawyer. Attorneys who pro-vide substantial assistance in the prepara-tion of documents to be filed in court orother tribunal should check the rules ofthe relevant forum to determine theextent of their disclosure obligations; theD.C. Rules of Professional Conduct donot address this question.

Adopted: July 2005Published: July 2005

Opinion 331

Contact With In-House Counsel of aRepresented Entity

● In general, a lawyer may communi-cate with in-house counsel of a represent-ed entity about the subject of therepresentation without obtaining the priorconsent of the entity’s other counsel.

Applicable Rule ● Rule 4.2 (Communication Between

Lawyer and Opposing Parties)

Ethics rules generally prohibit lawyersfrom communicating with a person aboutthe subject of the representation with aperson the lawyer knows is representedby another lawyer with respect to thatmatter.1 Several members of the commit-tee have encountered questions frommembers of the bar about whether theD.C. version of this prohibition, Rule 4.2of the D.C. Rules of Professional Con-duct, would bar a lawyer from communi-cating with an organization’s in-housecounsel about a matter when that organi-zation is represented by outside counselon the same matter. While no formalinquiry has been made to the committee,we believe that the issue comes up suffi-ciently frequently to warrant an opinion.

December 2005 THE DISTRICT OF COLUMBIA BAR 273

8 Some jurisdictions have modified their rules inorder to more directly address the issue of attorneycommunication with a party receiving limited legalassistance. See, e.g., Colo. RPC 4.2 comment (“apro se party to whom limited representation hasbeen provided . . . is considered to be unrepresent-ed for purposes of this Rule unless the lawyer hasknowledge to the contrary”); Colo. RPC 4.3 com-ment (“pro se parties to whom limited representa-tion has been provided . . . are considered to beunrepresented for purposes of this Rule”); Me. Bar.R. 3.6 (f) (party being provided with limited repre-sentation “is considered to be unrepresented”except to extent the limited-representation attorneyprovides written notice to opposing counsel of thetime period in which counsel should communicateonly with the limited-representation attorney);Wash. RPC 4.2 (b); 4.3 (b) (similar to Maine).

9 See, e.g., Los Angeles County Bar Ass’nEthics Op. 502 (1999) (attorneys assisting pro selitigants need not disclose their involvement); Pro-fessional Ethics Commission, Op. No. 89 (2003)(attorney did not act unethically in drafting com-plaint for litigant to file and proceed with pro se).

10 See, e.g., Duran v. Carris, 238 F.3d 1268(10th Cir. 2001) (participation by attorney in draft-ing pro se appellate brief must be acknowledged bysignature); Lerner, supra, 819 A.2d at 483 n.2 (sug-gesting that “any party’s consent to limit the attor-ney’s scope of representation . . . should be fullydisclosed to the court”); Ricotta v. State, 4 F. Supp.2d 961, 986-88 (S.D. Calif. 1998) (failure of attor-ney to reveal her extensive role in drafting pro selitigant’s lengthy oppositions to defendants’motions to dismiss was improper, but court wouldnot hold counsel in contempt because rules of pro-

fessional conduct and court rules failed to provideclear guidance); New York State Bar Ethics Op.613, at 5 (April 1990) (lawyer who assists pro selitigant in preparation of documents to be filed incourt must disclose her name); Del. Bar Ass’nEthics Op. 1994-2, at 2 (May 6, 1994) (if an organ-ization prepares documents other than initial plead-ings, the extent of the organization’s participationshould be disclosed by means of a letter to oppos-ing counsel and the court); Kentucky Bar Assoc.,Ethics Op. E-343 (Jan. 1991) (counsel may limitrepresentation of a pro se litigant to preparation ofinitial pleadings, and “the better and majority viewappears to be that counsel’s name should appearsomewhere on the pleading”).

11 The State of Washington, for example, hasadopted rules that authorize lawyers to help other-wise self-represented persons to draft pleadings,motions and documents to be filed in court and torely on the otherwise self-represented person’s rep-resentation of facts “unless the attorney has reasonto believe that such representations are false ormaterially insufficient.” Wash. Super. Ct. R. 11(b).Colorado requires attorneys to “advise the pro separty that a pleading or paper for which the attor-ney has provided drafting assistance must includethe attorney’s name, address, telephone number andregistration number,” but provides that this disclo-sure does not “constitute entry of appearance by theattorney.” Colo. R. Civ. P. 11(b).

1 Restatement of the Governing Lawyers § 99(Restatement); Rule 4.2 of the ABA Model Rules ofProfessional Conduct.

The goal of Rule 4.2 is clear. Inexplaining it to the Court of Appealswhen proposing the present version, theD.C. Bar Board of Governors said that its“basic purpose. . . is to prevent a client,who on the one hand is presumed to berelatively unsophisticated legally butwho on the other hand has ultimate sub-stantive control over the matter, frommaking uninformed or otherwise irra-tional decisions as a result of undue pres-sure from opposing counsel.” ProposedRules of Professional Conduct and Relat-ed Comments 187 (Nov. 19, 1986) (“Jor-dan Committee Report”); see alsoRestatement, § 99, comment b.

We start by noting that the foregoingrationale for the anti-contact rule doesnot apply where a lawyer desires to con-tact an organization’s in-house counsel.Such a communication would be lawyerto lawyer, and concerns about protectingthe organization from overreaching anddeception by the lawyer initiating thecommunication should not apply. Nor isit likely that in-house counsel wouldinadvertently make disclosures harmfulto the organization, as a non-lawyermight do.2 Therefore, if the Rule forbidscontact with those in-house counsel whoare representing their client on the matterin question, that would be an unintendedresult. And we do not believe that the textof the Rule compels that result.

The structure of the D.C. version ofrule 4.2 is more elaborate than the ABAModel Rule 4.2, which has only one sen-tence. The D.C. version has four subpara-graphs, of which the first three arepertinent here. Subparagraph (a), whichis similar to ABA Model Rule 4.2, gener-ally prohibits a lawyer from communicat-ing about the subject of the represen-tation with “a party known to be repre-sented by another lawyer in the matter,”unless the lawyer has the prior consent ofthat other lawyer or is authorized by lawto make the communication. The signifi-cance of the other party being “known tobe represented by another lawyer” withinthe meaning of subparagraph (a) is quiteclearly that a lawyer’s communicationshould be with that other lawyer ratherthan directly with the party—because, asjust mentioned, the purpose of the Rule isto avoid situations in which a lawyer may

take advantage of a non-lawyer by direct-ly communicating with that person.When a party is represented by in-housecounsel there would not seem to be anyreason why a lawyer could not communi-cate with that counsel.

Subparagraphs (b) and (c) then dealwith specific issues surrounding partiesthat are organizations. Subparagraph (b)provides that a lawyer may communicateon the subject of the representation with“a nonparty employee of the opposingparty” without obtaining the consent ofthe opposing party’s lawyer.3 A non-partyemployee is one who does not have theauthority to speak for, and bind, theorganization with respect to the repre-sentation in question; thus, a non-partyemployee cannot make the kind ofunwise or pressured decisions for theorganization that the Rule is designed toprevent. See Comment [3] to Rule 4.2.4Subparagraph (c) then defines an organi-zation “party” as including “any person,including an employee of a party organi-zation, who has the authority to bind aparty organization as to the represen-tation to which the communicationrelates.” Thus, it is the ability of an org-anization employee to bind the partyorganization as to the representationitself that is critical in defining “party.”

As just noted, considering subpara-graph (a) and the purpose of the Rule, itwould seem that an opposing lawyercould communicate with in-house counselwho was representing the other party.Based on language in subparagraph (c)(defining “party” as any employee “whohas the authority to bind a party organiza-tion as to the representation to which thecommunication relates”), an argumentcould be made that the in-house counselwho are representing their client in thatmatter may fall under that definition of“party” because, by virtue of that very rep-resentation, they can to some extent speakfor and bind their client, and that a lawyercould not communicate with in-housecounsel without the consent of outside

counsel. We find this argument unpersua-sive because it ignores the drafters’ clearintentions expressed in the text of sub-paragraph (a), it would create a restrictionon communication that is inconsistentwith and counterproductive to the Rule’spurpose, it would not seem to have anyperceptible purpose, and it would lead topeculiar and unworkable results.

Most importantly, such an interpreta-tion would run counter to the text of sub-paragraph (a). As we have noted, thecritical point under subparagraph (a) isthe fact that the party is “represented byanother lawyer,” and the clear require-ment of subparagraph (a) is that a lawyermust communicate with a party, if at all,by communicating with that party’slawyer. Where it is in-house counsel whois representing a party, it is the clearimport of subparagraph (a) that the lawyershould communicate with that counsel.

It is true that subparagraph (a) does notexpressly say that the communicationmust be made to the lawyer representingthe opposing party where there is such alawyer. Nonetheless that is its clear impli-cation—where the Rule forbids commu-nication with a represented party there isno one else, other than counsel providingthat representation, to communicate with.5To the extent it might be argued that sub-paragraph (a) is not fully or sufficientlyexplicit to counter a literalistic reading ofsubparagraph (c) with respect to in housecounsel, we recur to the fact that Scopenote [1] instructs us that these Rules areto be read as rules of reason that “shouldbe interpreted with reference to the pur-poses of legal representation and of thelaw itself.” Reading Rule 4.2(c) to definean in-house lawyer as the “party” simplybecause (as is likely the only real distinc-tion in many circumstances) house coun-sel get paid a salary while outside counsel

274 THE DISTRICT OF COLUMBIA BAR December 2005

2 It is possible that an organization’s outsidecounsel may complain that, by bypassing outsidecounsel to discuss a matter with in-house counsel,the lawyer has interfered with the outside counsel’srelationship with the organization. However, D.C.Rule 4.2 does not address those considerations, andwe do not believe that they raise any issue underthe D.C. Rules of Professional Conduct.

5 Subparagraph (c) does as a practical matterrequire communication with the opposing party’slawyer. If the lawyer seeking communication mustcommunicate with the opposing party, cannot com-municate with the party because of Rule 4.2, andmay communicate with the counsel representingthe party, then the lawyer must communicate withcounsel. “A lawyer representing a client in a matterusually may not deal directly with others who havetheir own counsel in the matter. The lawyer mustcommunicate through their counsel exclusively.”ABA/BNA Lawyer’s Manual on Professional Con-duct at 71:301 (2004) (emphasis added). Effective-ly forcing one goal by making other coursesimpossible is a well-known legal mechanism. Cf.Lumley v. Wagner, 42 Eng. Rep. 687 (1852) (eventhough court believed it could not require a singerto perform for a company to which the singer wascontractually bound, court could, and did, enjoinher from performing for anyone else during the rel-evant period).

3 But subparagraph (b) further provides thatbefore a lawyer may talk to such a non-partyemployee, the lawyer must disclose the lawyer’sidentity and the fact that the lawyer represents aparty with a claim against the non-party employee’semployer.

4 Indeed, comment [3] explains that an opposinglawyer may talk to an organization’s employee whohas “the authority to bind the organization withrespect to matters underlying the representation”without the consent of the organization’s counsel“if [the employee does] not also have authority tomake binding decisions regarding the representa-tion itself.” See Comment [3], Rule 4.2.

are paid fees would serve no discernablepurpose, is foreign to the purposes forwhich the Rule was written, and wouldbring about peculiar and clearly unintend-ed results, to such an extent that we couldnot interpret the Rule reasonably to bringabout that result.

It is not possible to discern any sensi-ble policy that would support a reading ofsubparagraph (c) as forbidding communi-cation with house counsel while allowingit for outside counsel. The fact that in-house counsel may have the power tobind the party does not distinguish in-house counsel from outside counsel: asthe Restatement shows, any lawyer repre-senting a party, whether in-house or not,will have at least some power to speakfor, or bind, that party within the scope ofa representation Restatement at §§ 26, 27.Otherwise, communication with a party’slawyer would be useless because what thelawyer said would not be reliable; indeedit is precisely because a party’s counselcan reliably speak for the party that Rule4.2(a) can require a lawyer to speak to aparty’s lawyer rather than to the partyitself. It does not appear that there wasany reason why the term “authority tobind a party organization” was includedin the Rule’s definition of “party” exceptin order to deal with the familiar issue ofwhich natural persons can in particularinstances make decisions that will bind anartificial person—an organization—with-in its sphere of operation. That is the onlyissue discussed in the pertinent commentsto D.C. Rule 4.2 (comments [2] and [3]).It is the only issue discussed in the perti-nent sections of the Board of Governors’recommendations to the D.C. Court ofAppeals.6 See Jordan Committee Reportat 187 & 189–91.

Moreover, if Rule 4.2(c) were read toforbid a lawyer to contact in-house coun-sel representing an opponent, that wouldlead to an absurd result whenever (as fre-quently occurs) the organization had

decided not to hire outside counsel. If in-house counsel were considered to be the“party,” then under this interpretationopposing counsel could not communicatewith the organization at all; subparagraph(a) would prevent the lawyer from speak-ing directly to senior management of theorganization because the organization isclearly being represented by in-housecounsel, yet subparagraph (c) would barthe lawyer from talking to in-house coun-sel because, as one who could “bind” theorganization as to the representation, thein-house counsel would be considered tobe the “party.” It could hardly be contend-ed that this was an intended result, and itwould certainly be an unworkable result.7

It might be argued that a distinction canbe drawn between the activities of in-house and outside counsel because coun-sel who are employees might be morelikely to be given powers by their employ-ers that extend beyond strictly counselfunctions. For example, in-house counselmight be given the power to settle caseswithout referring to others in the organi-zation. There are several reasons whysuch an approach based on such a per-ceived distinction would not be warrant-ed. First, given the purpose of the Rule,which is to prevent lawyers from commu-nicating directly with parties who arenonlawyers where those parties are repre-sented by counsel, this distinction, even ifit exists, is irrelevant. That an in-houselawyer may have some additional func-tions does not alter the fact that it is thatlawyer who is representing the party. Sec-ond, it is not clear that the distinction doesexist—a client may give any lawyer, in-house or outside, functions that lawyersdo not usually have and that are usuallyexercised by a party, such as authority tosettle a dispute. See Restatement § 22comments c and e, § 27 comment d. It isnot at all clear whether it is more or lesscommon to find such authority in thehands of counsel who are employees asopposed to those who are not.

Similarly it might be claimed thatallowing an opposing counsel to pick andchoose the lawyer with whom to commu-nicate among in-house and outside coun-sel representing the other party allows thelawyer leeway that might be abused. Forexample a lawyer might call opposinglawyer A to ask for an extension while

knowing that opposing lawyer B wouldlikely reject it for a reason that A may notbe aware of. But this is not a problem thatRule 4.2 is aimed at or is suited to solve.The Rule is aimed at the problems thatmay flow when a lawyer communicatesdirectly with a party even though thatparty is represented by counsel. Theproblem of one lawyer trying to takeadvantage of the fact that an opponentmay have multiple lawyers with varyingdegrees of knowledge or involvement is adifferent issue—and should not beaddressed in a haphazardly incompletefashion by declaring one of the opposinglawyers to be the party, which, as wehave discussed, has nothing to do withthe purpose of the Rule and creates otherdifficulties.8

In sum, we conclude that a lawyer whois also an employee of a client organiza-tion represents that client; the in-housecounsel is not also the “party” within themeaning of D.C. Rule 4.2(c). The factthat in-house counsel represent theirclient in a matter does not mean that Rule4.2 prohibits opposing counsel fromcommunicating with them, even whenthe client has also retained outside coun-sel on the same matter.9

December 2005 THE DISTRICT OF COLUMBIA BAR 275

6 The significance of this point appears withmore than usual clarity in these circumstances. Asnoted above, the ABA Model Rule 4.2 containsonly a single sentence with approximately the lan-guage of D.C. Rule 4.2(a). The Jordan Committeeadded subparagraphs (b) and (c) and explained itsreasons for doing so at length; the portion of thisdiscussion pertaining to non-governmental par-ties is at pages 189–191 of the Jordan CommitteeReport. Nothing in this discussion even remotelyaddresses any concern over communications withcounsel depending on whether they are in house oroutside. It is obvious from a reading of this portionof the Committee’s report that any effect of con-stricting a lawyer’s ability to communicate within-house counsel representing an opponent wouldbe unintended by the drafters.

7 The phrase “represented by another lawyer” insubparagraph (a) clearly refers only to counsel otherthan the lawyer seeking to make the contact; it cannotbe read to refer to in-house counsel when no outsidecounsel has been hired yet not to refer to in-housecounsel when outside counsel has been hired.

8 This “solution” of regarding in-house counselas the “party” would be incomplete and in somecases counterproductive. The same kind of attemptto pick and choose whom to call can occur whenthis interpretation of the Rule would have no effect,such as when are multiple law firms (for examplewhere one serves as local counsel) and no housecounsel involved in the representation. Similarlythe opponent is often represented only by in-housecounsel with more than one in-house lawyer isinvolved in the representation. Finally, it not infre-quently occurs that day-to-day representation isprovided by house counsel but a law firm is alsoinvolved on a more strategic or coordinating level.Here an opposing lawyer might seek to avoid call-ing house counsel and might call a lawyer in thefirm to make a request because of that lawyer’slack of familiarity with day-to-day developments.In such situations deeming in house counsel to bethe party and forcing communications to be withthe law firm would constitute a distinct disadvan-tage to the party.

9 The D.C. Bar Rules of Professional ConductReview Committee has recommended adding acomment to Rule 4.2 that would expressly concludethat “Because this Rule is primarily focused on pro-tecting represented persons unschooled in the lawfrom direct communications from counsel for anadverse person, consent of the organization’s lawyeris not required where a lawyer seeks to communicatewith in-house counsel of an organization.” ProposedAmendments to the D.C. Rules of Professional Con-duct: Report and Recommendations, at 151 (January31, 2005). Since comments to the Rules explain andillustrate them rather than providing new substance(see Scope note [6] to the Rules), the Rules ReviewCommittee’s recommendation of this new commentmeans that that Committee interprets Rule 4.2 con-sistently with this opinion.

This result is consistent with theauthorities that have considered the issueunder versions of the Rule that are simi-lar to the Model Rule and do not includesubparagraphs (b) or (c), providing fur-ther reason to interpret the D.C. Rule toavoid any conclusion that a contraryresult was an unstated purpose of ourrule. The Restatement (§ 100, commentc) concludes that an opposing lawyer’scontact with in-house counsel of a corpo-ration is generally not barred by the anti-contact rules that apply in the UnitedStates. The same result was reached bythe District of Connecticut in In re Griev-ance Proceeding, 2002 WL 31106389(D. Conn. 2002). That court concludedthat in those circumstances an in-houselawyer “does not fall within the plainmeaning of ‘party’ for purposes of [Con-necticut’s version of Rule 4.2].” Id. at*3.10 The District Court noted that thepurpose of Rule 4.2 is “to protect thelawyer-client relationship by preventingopposing counsel from taking advantageof a non-lawyer’s relative unfamiliaritywith the law or prompting a non-lawyer’sinadvertent disclosure of informationagainst interest.” Id. The court added thatcommunication with a general counselgenerally will not raise the same con-cerns as communication with a non-lawyer employee. In holding that Rule4.2 does not prohibit the communication,the court noted that hiring an outsidecounsel generally will not transform thegeneral counsel from attorney to party forpurposes of Rule 4.2.

We agree with the result reached by theauthorities cited above and conclude that,in the District of Columbia, a lawyer gen-erally is not proscribed by D.C. Rule 4.2from contacting in-house counsel eventhough the entity is represented by out-side counsel.11 Of course, if the in-housecounsel is represented personally in amatter, Rule 4.2 would not permit alawyer to communicate with that in-house counsel regarding that matter,without the consent of the in-house coun-sel’s personal lawyer.

Approved: September 2005 Published: October 2005

Opinion 332

Firm Names for Solo Practitioners

● A lawyer who opens a solo practicemay conduct his or her business underany trade name that does not constitute afalse or misleading communication aboutthe lawyer or the lawyer’s services. Theuse of the word “firm” in the firm namedoes not inherently constitute a mislead-ing representation about a solo practition-er. A solo practitioner must take care,however, to insure that clients and poten-tial clients are not misled as to the natureof his or her practice.

Applicable Rules ● Rule 7.5 (Firm Names and Letterheads)● Rule 7.1 (Communications Concern-

ing a Lawyer’s Services)

Inquiry

The Committee has received aninquiry regarding the permissible firmnames that may be adopted by a solopractitioner. We have been asked to pro-vide guidance on the nature of acceptablefirm names that comport with the Rulesof Professional Conduct. In particular, weare asked, may Jane Doe, a solo practi-tioner without employees, practice underthe name “The Doe Law Firm” or “TheAdvocacy Law Firm?”

Background

Rule 7.5(a) generally provides that: “Alawyer shall not use a firm name, letter-head or other professional designationthat violates Rule 7.1.” D.C. Rule 7.5.Rule 7.1(a), in turn, prohibits lawyersfrom making a “false or misleading com-munication” concerning the lawyer or thelawyer’s services. A statement is false ormisleading if it: contains a material mis-representation of fact; omits a fact neces-sary to make the statement considered asa whole not materially misleading; orcontains an assertion about the lawyer orthe lawyer’s services that cannot be sus-tained. Id. § 7.1(a).

This general prohibition on materiallymisleading representations is applied tolaw firm names, in part, through Rule7.5(d), which provides: “Lawyers maystate or imply that they practice in a part-nership or other organization only whenthat is the fact.” Thus, for example,lawyers who share office facilities butwho are not, in fact, partners may notdenominate themselves as, say, “Smith

and Jones” because that title suggests apartnership in the practice of law thatdoes not in fact exist. D.C. Rule 7.5,Comment [2]. More broadly, one may notuse the name of a particular lawyer as partof the firm’s name if the lawyer is notassociated with the firm or is not a prede-cessor of the firm. Id. at Comment [1].

Courts and other Bars have appliedthis Rule and its commentary in a mannerthat furthers the general prohibition on amisleading firm name. Thus, it is com-monplace that a firm name must reflectaccurately the nature of the entity thatbears it and the nature of the relationshipof the lawyers who are affiliated with it.A law firm, for example, may only callitself “Medical Malpractice Trial Attor-neys, Inc.” if it, in fact, handles malprac-tice cases through trial. See Phila. EthicsOp. 98-17 (1998); see also In re Shan-non, 638 P.2d 482 (Or. 1982) (“Shannonand Johnson’s Hollywood Law Center”trade name is permissible because it hasno tendency to mislead). For this usingthe word “advocacy” in a firm name isacceptable, so long as the firm in factdoes advocacy (as most do) and does notlimit its practice to, say, serving as a neu-tral third-party arbiter.

The possibility for confusion is partic-ularly acute in the context of firm namesthat misrepresent the nature of the con-nection between and amongst the mem-bers of the entity so named. It is, forexample, misleading to state that one is amember of a “Professional ServicesGroup” of attorneys and accountants,where the group has no formal existence.See In re Schneider, 710 N.E.2d 178 (Ind.1999). Conversely, if two lawyers whoshare offices maintain a continuing rela-tionship akin to that of “of-counsel”association, they may hold themselvesout as such, though they may not take thenext step of misleadingly practicingunder a trade name such as “Law Officesat X Square” which implies a unitaryrelationship. See N.Y. City Ethics Op.1995-8 (1995); see also ABA InformalOp. 85-1511 (1985) (firm may nameitself “The X Partnership” where X is aretired former partner).

Our own Court of Appeals added a fur-ther gloss when it construed Rule 7.5 inIn re Karr, 722 A.2d 16, 22-26 (1998),reading the Rule broadly to permit iden-tification of “partnerships” that were lessthan “full-fledged” ones. Karr had oper-ated his law firm under a trade name thatincluded the last name of WilliamMcLain (e.g. “Karr and McLain”).McLain, however, was not an equity part-ner in the firm, but rather functioned,

276 THE DISTRICT OF COLUMBIA BAR December 2005

10 § 100, Comment c. A similar result wasreached in In re James Finkelstein, 901 F.2d 1560(11 th Cir. 1990).

11 The Committee notes, however, that eventhough this opinion concludes that a lawyer may gen-erally initiate contact with in-house counsel, in-housecounsel is not obligated to engage in the communica-tion and may direct the lawyer to communicate onlywith the organization’s outside counsel.

apparently, as a non-equity partner. TheCourt concluded that the purpose of Rule7.5(d) is for “partners [to be] accuratelyidentified as such . . . so that the public isnot misled.” Karr 722 A.2d at 25. Giventhat the Rules might be read to permit theidentification of partnerships taking anyof a number of forms recognized underlaw, the Court concluded that Karr’s useof McLain’s name did not constitute a“false or misleading” communicationthat McLain was a “partner” in the firm.Id. at 26.

Discussion

With this background in mind we turnto the question presented, which may berestated as follows: is an implicit state-ment that one practices in a partnershipor multi-member organization madewhen a solo practitioner styles his or herlaw office as “The Doe Law Firm” or“The Advocacy Firm” or similar names?

In our view, this question is reallycomprised of two distinct components—first, whether the use of the word “firm”by a solo practitioner is always andinherently misleading because it neces-sarily contains a material misrepresenta-tion or omits a fact that renders thestatement materially misleading. In otherwords, we believe the first stage of ourinquiry is to ask whether the use of theword “firm” is such that we may con-clude that it is likely to be misleading inall or nearly all applications because itnecessarily is inconsistent with solo prac-tice. The second component of theinquiry asks whether the use of the word“firm” to describe a solo practitioner issufficiently clear and unambiguous that itmay never be deemed misleading, what-ever the context.

As we discuss below, in our view nei-ther absolute conclusion is warranted. Asa general matter, the use of the word“firm” by a solo practitioner is not pre-sumptively misleading. But practitionerselecting to use this naming conventionmust exercise caution to avoid its use incontexts where it is misleading or is like-ly to be so.

Is the use of the word “Firm” inherentlyfalse or misleading?

Though we have found no law or opin-ions addressing this question directly, inour judgment, the use of a name such as“The Jane Doe Firm” is not inherentlymisleading. It does not, in our view, con-vey to a reasonable observer that thelawyer necessarily practices with other

lawyers. Rather, in our view the use ofthe term ‘firm’ may also be used to dis-tinguish between the lawyer in her indi-vidual capacity, as opposed to herbusiness or professional capacity. Forexample, a telephone listing for The JaneDoe Law Firm distinguishes the tele-phone number from Jane Doe’s residen-tial number. The recipient of a letter fromThe Jane Doe Law Firm knows that alawyer as opposed to a layperson haswritten to him.

To begin with, we recognize that thecommon usage of the word “firm” in theEnglish language is sometimes ambigu-ous. People use the term both to mean “abusiness enterprise” and to mean “agroup of more than one person in a busi-ness.” Reflecting that ambiguity, theOxford English Dictionary first defines“firm” as: “The ‘style’ or name underwhich the business of a commercialhouse is transacted”—that is a definitionthat applies irrespective of the number ofparticipants in the firm. However, theOED then offers, as a second definitionof “firm” the following: “A partnershipof two or more persons carrying on abusiness”—a definition which, of course,connotes more than one participant.1

Furthermore, the Terminology sectionof our own Rules explicitly recognizesthat the word “firm,” as used in the Rules,does not necessarily suggest the presenceof other legal staff. Thus, the Rulesdefine “firm” or “law firm” to mean “ alawyer or lawyers in a private firm . . .”D.C Rules, Terminology [4] (emphasissupplied). This specific definition is, atleast implicitly, a recognition that firmsmay consist of many lawyers or only asingle practitioner.2

Where the question is whether a par-

ticular form of firm name might misleadmembers of the public, the public’s actu-al confusion (or lack thereof) seems ger-mane to our inquiry. It is, therefore,worth asking whether the public is actu-ally confused by the fact that a solo prac-titioner uses the word “firm” to describeher law practice.

The answer appears to be: “no.” A cur-sory review of the local Yellow Pagesreveals dozens of legal offices styled inthe form “Doe Law Firm” comprised,from all appearances, of only a singlepractitioner. Moreover, when we infor-mally inquired of the Office of Bar Coun-sel regarding the nature of anycomplaints they might have receivedconcerning misleading law firm names,we were advised that Bar Counsel had norecollection of having received a com-plaint about a firm name of the form“Doe Law Firm” in the past quarter cen-tury. Though the absence of evidence cannever be conclusive evidence of absenceof a problem, we think the apparent lackof public confusion significant. At a min-imum it buttresses our conclusion that, inthe real world, the use of the word “firm”is not necessarily misleading whenapplied to a solo practitioner. For exam-ple, notwithstanding a name such as“Doe Law Firm” clients are unlikely tobe misled into thinking they are dealingwith a multi-lawyer organization whenthe practitioner operates out of a home orone-room office.

We can, of course, readily imaginenames that one might adopt for whichthis analysis would not be true—wherethe name clearly implies that which is nottrue and is therefore inherently mislead-ing in all circumstances. For example,Bar Counsel does report that they havereceived complaints regarding the use ofnames of the form “Doe & Associates”. Itis useful to reiterate that, as we said inOpinion No. 189 (decided under the for-mer Code of Professional Responsibili-ty), a solo practitioner may not practiceunder the name “John Doe & Associates”for the use of the word “associates”would naturally be read to necessarilyimply the existence of other legal staff inthe practice. See D.C. Ethics Op. 189(1988). This prohibition remains in effecttoday under Rule 7.5(d) of the Rules ofProfessional Conduct. Cf. DisciplinaryCounsel v. Furth, 754 N.E.2d 219 (Ohio2001) (solo practitioner may not practiceunder his name followed by “Associates,Attorneys and Counselors at Law”); cf.,Medina County Bar Ass’n v. Grieselhu-ber, 678 N.E.2d 535 (Ohio 1977) (solopractitioner may not style his firm “andAffiliates” or hold himself out as “BodyInjury Legal Centers”). Similarly a sololawyer using the title “Senior Attorneyand Director of Services” misleadsbecause the lawyer implies the existenceof other staff. Oklahoma Bar Ass’n v.Leigh, 914 P.2s 661 (Okla. 1996).

Finally, as our Rules make clear, seeRule 7.5, comment [1], any analysis ofthe “Doe Law Firm” naming conventionshould take into account broader constitu-

December 2005 THE DISTRICT OF COLUMBIA BAR 277

1 Other dictionaries reflect similar ambiguity.Webster’s Tenth Collegiate, for example, defines afirm as: “1. the name or title under which a compa-ny transacts business; 2. a partnership of two ormore persons that is not recognized as a legal per-son distinct from the members composing it; [or] 3.a business unit or enterprise.” Nor does the word“company” necessarily imply multiple compo-nents. Webster’s, for example, defines it as both “achartered commercial organization” and an “asso-ciation with another.”

2 Our analysis is limited, of course, to theRules of Professional Conduct. Independent pro-visions of Federal or District law might otherwiseprovide authorization for or limitations on thetrade names that a solo practitioner or other lawfirms may adopt and must, of course, be compliedwith. See, e.g., D.C. Ethics Op. 254 (1995)(authorizing use by lawyers in District of abbrevi-ations such as “LLP,” “LLC,” and “PLLC” in lightof statutory authorization for formation of suchorganizations by District law), revising D.C.Ethics Op. 235 (1993) (pre-statute prohibition onsuch abbreviations).

tional considerations. The Supreme Courthas held that the First Amendment pro-tects commercial speech and that the pub-lic, generally, has a right to receivetruthful and non-deceptive information.See Bates v. State Bar, 433 U.S. 350(1977) (commercial speech serves indi-vidual and societal interests in assuringinformed and reliable decision-making).To be sure, a state may regulate tradenames where their use is deceptive, seeFriedman v. Rogers, 440 U.S. 1 (1979),but the First Amendment clearly prohibitsthe regulation of lawyer speech wheresuch regulation is based merely on specu-lative harms. E.g. In re RMJ, 455 U.S.191 (1982) (rejecting restriction on listingexpertise); Peel v. Attorney Registrationand Disciplinary Com’n of Illinois, 496U.S. 91 (1990) (rejecting restriction onadvertisement as trial specialist); Ibanezv. Florida Dept. of Business and Prof.Regulation, 512 U.S. 136 (1994) (reject-ing listing of CPA qualification). As theSupreme Court has said: “[T]he Statesmay not place an absolute prohibition oncertain types of potentially misleadinginformation. . . if the information alsomay be presented in a way that is notdeceptive.” In re RMJ, 455 U.S. at 203.

Thus, at a minimum, we believe that,in interpreting the Rules of ProfessionalConduct, we should err on the side ofpermitting lawyers to choose their owntrade names unless there is a clear indica-tion that the name is deceptive or mis-leading. For this reason, in our view, thenaming convention “Doe Law Firm” isnot per se impermissible.

The use of “firm” may be misleading incertain contexts

Our conclusion that the use of “firm”as a naming convention by a solo practi-tioner is not inherently misleading orfalse does not, however, end the inquiry.For we can readily imagine that, underparticular circumstances, the use of theterm could be misleading or confusing.Thus, solo practitioners who practiceunder a name such as the “Jane DoeFirm” must exercise caution in the con-duct of their practice and, when facedwith circumstances in which a clientmay reasonably be confused, are underan affirmative obligation to avoid anymisunderstanding.

Cases and opinions on lawyer’s speechmake clear that context matters. Thus, forexample, while the phrase “legal clinic” isnot inherently misleading, see Bates v.State Bar, 433 U.S. 350 (1977); Jacoby v.State Bar, 562 P.2d 1326 (Cal. 1977), it

can be misleading in context when itimplies the existence of a separate entitywhere none exits, see In re Shapiro, 656N.Y.S.2d 80 (App. Div. 1996) (listing as“Accident Legal Clinic of Shapiro andShapiro” misleading because clinic notseparate from law firm and firm handledmore than accident claims). Similarly, twofirms may reflect their association witheach other—but only in a manner thatcontextually makes clear the nature oftheir relationship. E.g., ABA Formal Op.94-388 (1994) (firms may designatethemselves as “Allied” or in a “Network”provided additional disclosure regardingnature of relationship between the firms isalso made to prevent misleading client);ABA Formal Op. 84-351 (1984) (lawfirms may list themselves as “Affiliated”or “Associated,” so long as communica-tions regarding the nature of the firms’relationship are clear and not misleading).

Our own opinions on related mattersoffer similar, cautionary advice about theneed for contextual analysis. For exam-ple, in D.C. Ethics Op. 224, we wrote:“A lawyer, all of whose partners die,retire, or otherwise leave the partnershipis not precluded from continuing to usethe former partnership name, absent rea-son to believe that clients or potentialclients are led by the firm name tobelieve that the lawyer practices in apartnership or with other lawyers.” Thus,the rule there (as here) was that the firmname was not presumptively misleading(even though the lawyer named was nolonger practicing in the firm), but that alawyer who knew or reasonably shouldhave known of any confusion on the partof clients or potential clients was obligedto correct the misimpression.

A lawyer’s obligation is not limited,however, to affirmatively correctingclients who are actually misled. As Rule7.5(d) comment [1] makes clear, in somesituations efforts must be made to avoiddeception by “avoid[ing] a misleadingimplication.” We can imagine contextswhere the use of the name “Jane DoeFirm” would give rise to such a mislead-ing implication.

One such circumstance that comesreadily to mind would be a solo practi-tioner using the firm naming conventionwho shares office space and staff withother lawyers. As we noted in Opinion303, office-sharing arrangements are rifewith the potential for confusion. See D.C.Ethics Op. 303 (“Office-sharing arrange-ments. . . create a risk of public confu-sion.”). That potential would seem to bemagnified by the use of a potentially con-fusing firm name. In such a case, the

unwary client might reasonably supposethat the other professionals present arealso members of the practitioner’s firm,and the prudent practitioner must takesteps, through affirmative representationsand through language in any engagementagreement, for example, to insure thatconfusion does not arise. See id. (Notingthat “[i]f a potential client appears con-fused about the relationship among theattorneys in such an arrangement, theattorney should take steps to resolve thisconfusion” and requiring attorney tomake an affirmative disclaimer of anyaffiliation with the other attorneys in theshared office space).

It bears emphasis: Our discussion ofthe solo practitioner sharing office spaceis meant to be illustrative only. There arecertainly other situations where the use ofthe word “firm” may be misleading. Thesolo practitioner who elects to practiceunder the “Law Firm” name should do soever mindful of the context in which hisor her actions will be viewed.

Conclusion

For the foregoing reasons, we believethat a solo practitioner may practiceunder a trade name that uses the term“firm” or “law firm” without violatingthe Rules of Professional Conduct. Indoing so, practitioners should exercisecaution to insure that the manner inwhich they conduct their practice doesnot, in context, mislead clients or poten-tial clients. Practitioners are also affirma-tively obliged to correct any misimpres-sion that might arise whenever they knowor reasonably should know that a clientmay be confused.3

Inquiry No: 05-03-01 Adopted: October 18, 2005 Published: November 2005

278 THE DISTRICT OF COLUMBIA BAR December 2005

3 One member of the Committee is not satisfiedwith the reasoning on which this opinion relies.Although he has chosen not to file a dissentingopinion, he has requested that his disagreementwith the opinion as written be formally noted.

Opinion 333

Surrendering Entire Client File UponTermination of Representation

l Upon the termination of representa-tion, an attorney is required to surrenderto a client, to the client’s legal represen-tative, or to a successor in interest theentire “file” containing the papers andproperty to which the client is entitled.This includes copies of internal notes andmemoranda reflecting the views,thoughts and strategies of the lawyer.

Applicable Rulesl Rule 1.8(i) (Imposing lien on attor-

ney work product)l Rule 1.16(d) (Surrendering files

upon termination of representation)

Inquiry

A law firm previously represented abank in a variety of matters. After thefirm’s representation in those mattersended, the Federal Deposit InsuranceCorporation (“FDIC”) was appointed asreceiver for the bank. The FDIC’s outsidecounsel has requested access to all of thefirm’s files regarding the bank. The firmhas provided access to all client files withthe exception of a small folder containingindividual attorney handwritten notes andseveral internal memoranda reflectingattorneys’ thoughts, impressions andstrategy ideas. Outside counsel for theFDIC claims to be entitled to all of thebank’s files—including the firm’s opin-ion work product—by virtue of theFDIC’s statutory assumption of all rights,titles, powers and privileges of theinsured depository institution. TheFDIC’s counsel has never articulatedwhy the particular material that the firmis withholding is necessary for its inves-tigation of the bank’s failure. Instead, itargues simply that the FDIC, as thebank’s successor in interest, is entitled tothese documents.

Discussion

D.C. Rule 1.16 provides that “[i]n con-nection with any termination of represen-tation, a lawyer shall take timely steps tothe extent reasonably practicable to pro-tect a client’s interests, such as . . . sur-rendering papers and property to whichthe client is entitled . . . The lawyer mayretain papers relating to the client to theextent permitted by Rule 1.8(i).” D.C.Rule 1.16(d). D.C. Rule 1.8(i) creates anarrow exception to the general rule that

clients are entitled to their files by allow-ing a lawyer to secure unpaid fees orexpenses by placing a lien “upon thelawyer’s own work product, and thenonly to the extent that the work producthas not been paid for.” D.C. Rule 1.8(i).1The Comment to D.C. Rule 1.8 states, “ifthe client has paid for the work product,the client is entitled to receive it, even ifthe client has not previously seen orreceived a copy of the work product.”D.C. Rule 1.8, Comment [9].

The Committee has recognized that thesurrender of all files to the client at thetermination of a representation is the gen-eral rule and that the work-productexception applicable to liens for unpaidfees or expenses should be construed nar-rowly. See D.C. Ethics Op. 250 (1994);D.C. Ethics Op. 230 (1992). Work prod-uct “immunity” is a doctrine of evidencelaw, which may shield attorney workproduct from discovery by opposingcounsel; it does not shield that sameattorney work product from the attor-ney’s own client.

Indeed, the Committee has explicitlyrecognized that the District of Columbiahas rejected the “end-product” approachof some jurisdictions2—where the clientonly owns the pleadings, contracts, andreports that reflect the final result of theattorney’s work—in favor of the majori-ty, “entire file” approach, “which doesnot permit a lawyer to acquire a lien onany of the contents of the client fileexcept that portion of work product with-in the file that has not been paid for.”D.C. Ethics Op. 283 n.3 (1988); see alsoD.C. Ethics Op. 168 (1986) (for purposes

of determining what needs to be turnedover to a former client or substitute coun-sel, the “entire contents of a client’s file”includes “all notes, memoranda and cor-respondence constituting ‘work prod-uct’”); Sage Realty Corp. v. ProskauerRose Goetz & Mendelsohn LLP, 91N.Y.2d 30, 34, 689 N.E.2d 879, 666N.Y.S.2d 985 (N.Y. 1997).

D.C.’s approach has been embraced bythe Restatement (Third) of The Law Gov-erning Lawyers (2000), which states that,“On request, a lawyer must allow a clientor former client to inspect and copy anydocument possessed by the lawyer relat-ing to the representation, unless substan-tial grounds exist to refuse.” Id. at § 46(2).An attorney must surrender all papers andproperty to which the client is entitled.This requires the attorney to considercarefully the contents of the “file,” ensur-ing that it contains all material that theclient or another attorney would reason-ably need to take over the representationof the matter, material substantively relat-ed to the representation, and material rea-sonably necessary to protect or defend theclient’s interests. An attorney would notbe required to surrender material thatrelates solely to the prior management ofthe case (such as material concerningwhich of the firm’s lawyers were assignedparticular research projects) or to mattersthat are completely unrelated to the sub-stance of the representation.

Conclusion

For these reasons, at least so far as theD.C. Rules of Professional Conduct areconcerned, nothing in the matter at handwould justify withholding the relevantfile from counsel for the FDIC.3

Inquiry No: 05-10-05Adopted: December 20, 2005Published: December 2005

Opinion 334

Agreement Between Lawyer andMedia Representatives

l Rule 1.8(c) does not apply to anagreement between a lawyer representinga client and representatives of the mediawho are interested in obtaining thelawyer’s story.

May 2006 THE DISTRICT OF COLUMBIA BAR 279

1Although not relevant here, D.C. Rule 1.8(i)

also provides that, even when payment has not beenmade, work product cannot be withheld (i) when theclient has become unable to pay, or (ii) when with-holding the lawyer’s work product would present asignificant risk to the client of irreparable harm.

2A minority of courts and state bar legal ethics

authorities distinguish between the “end product”of an attorney’s services—e.g., filed pleadings,final versions of documents prepared for theclient’s use, and correspondence with the client,opposing counsel and witnesses—and the attor-ney’s “work product” leading to the creation ofthose end product documents, which remains theproperty of the attorney (see, e.g., Federal LandBank v. Federal Intermediate Credit Bank, 127F.R.D. 473, aff’d in part and rev’d in part on othergrounds, 128 F.R.D. 182 (S.D. Miss. 1989); Corri-gan v. Armstrong, Teasdale, Schlafly, Davis &Dicus, 824 S.W.2d 92 (Mo. Ct. App.); AlabamaState Bar, Formal Ethics Op. RO 86-02; ArizonaState Bar Comm. on Rules of Prof’l Conduct, Op.No. 92-1; Illinois State Bar Assn., Op. No. 94-13;North Carolina State Bar Ethics Comm., RPC 178(1994); Rhode Island Supreme Ct. Ethics AdvisoryPanel, Op. No. 92-88 (1993); Wisconsin EthicsOpinion E-82-7 (1998)).

3This assumes, of course, that the FDIC, is, as

a matter of federal law, in effect the “client” and isentitled to any property or files to which the bankwould be entitled if it were still the firm’s client .

But Rule 1.7(b)(4) does apply in suchcircumstances, and the lawyer must bevigilant to determine those circumstanceswhere an agreement with media repre-sentatives gives the lawyer a personalinterest in the matter that may be at oddswith the lawyer’s obligation to the client.

Obtaining valid consent of the clientunder Rule 1.7(c) to a conflict arising insuch circumstances is difficult because itrequires the client to anticipate futureaspects of the representation to assesstheir potential impact on the lawyer’sability to represent the client. In such cir-cumstances either the client should haveindependent counsel or the lawyer shouldconsult independent counsel to assurethat the lawyer will obtain an objectiveview of whether the representation canproceed with consent.

Applicable Rules

l Rule 1.8(c) (Conflict of Interest—Acquiring Media Rights from Client)

l Rule 1.7(b)(4) (Conflict of Interest—Lawyer’s Personal Interests)

l Rule 1.7(c) (Conflict of Interest—Client’s Consent to Conflict)

l Scope Comment [5] (Interpretationof Specific versus General Rules)

Inquiry

A question posed by an inquirer raisesimportant issues concerning Rules 1.7and 1.8, as well as more general issuesconcerning how to interpret the D.C.Rules when more than one might apply tothe same situation.

The inquirer is a lawyer who repre-sents a pro bono client in litigation.Under their agreement, the client paysnothing for the legal representation and isnot required to reimburse the lawyer forexpenses of the litigation. The litigationhad drawn the interest of the press, andthe inquirer finds it necessary to speak tomedia representatives in the course of therepresentation. The inquirer has beenapproached by reporters for newspapersand magazines who are contemplatingwriting books, and “perhaps” producingmotion pictures, about the litigation. Theinquirer states that the primary interest ofthese media representatives is in thelawyers who are conducting the litigationrather than the client. The media repre-sentatives would like to discuss anarrangement under which the inquirerwould receive compensation from themfor the inquirer’s cooperation and therights to the inquirer’s story; the client,while not the primary focus of the

media’s interest, would also receive com-pensation “for his life rights.” The inquir-er would not divulge any confidentialinformation protected by Rule 1.6 (that isto say, the inquirer will disclose neither“confidences” nor “secrets” under thatRule) about the client without the client’sconsent. The inquirer asks whether thearrangement sought by the media repre-sentatives would violate Rule 1.8(c),which provides:

Prior to the conclusion of representationof a client, a lawyer shall not make ornegotiate an agreement giving thelawyer literary or media rights to a por-trayal or account based in substantialpart on information relating to the repre-sentation.

In particular, the inquirer notes, thisRule expressly applies only to an agree-ment giving the lawyer literary or mediarights of the client while, by contrast, inthe situation at hand the media, not thelawyer, seek the client’s and the lawyer’sliterary and media rights.

We conclude that (1) Rule 1.8(c) doesnot apply to the facts as presented but (2)Rule 1.7(b)(4) does, and the inquirer can-not proceed to negotiate with the mediarepresentatives without full disclosure tothe client and an appropriate waiver underRule 1.7(c), if such a waiver is possible.

1. Rule 1.8(c).

This Rule, quoted above, deals with aspecific and defined conflict of interest: itarises when a lawyer acquires literary ormedia rights concerning the lawyer’s rep-resentation of a client where that repre-sentation is ongoing at the time of theacquisition and where the lawyer general-ly has the intention to exercise those rightslater on, for example by writing a bookabout the matter. The existence of thosemedia rights in the lawyer’s hands mayinfluence choices made by the lawyer inthe representation because the mediarights may be worth more if some stepsare taken by the lawyer rather than others.If, for example, the lawyer had acquiredthe right to popularize the client’s story,acceptance of an early settlement mightdiminish the value of that right, so that thelawyer would then have a personal finan-cial interest in maximizing the value ofthe media rights that might negativelyinfluence the lawyer’s ability to make thebest decisions for the client.

The policy served by the Rule is obvi-ous. A lawyer holding media rights tothe story of the very case in which he isinvolved has an interest in seeing the

case sensationalized. The lawyer alsohas the means of sensationalizing it, byhis choices of tactics and by the recom-mendations he makes to the client (notto plead guilty to a lesser charge, forexample). Thus the risk that the lawyerwill succumb to these temptations andactually provide less than vigorous rep-resentation is not trivial.

1 Hazard and Hodes, The Law ofLawyering, §12.10 at 12-28 (Third Edi-tion, 2004 Supplement). The Rule there-fore forbids the acquisition of such rightsby the lawyer while the representation isongoing and the lawyer’s decisions forthe client still may be so influenced, andthere is no provision therein for waiverby the client.

There is an exception to this rule wherethe lawyer represents the client only inseeking to sell the client’s literary rightsand has a contingent fee arrangement withthe client such that the more value thelawyer secures for the client, the greaterthe fee to the lawyer. See D.C. Rule 1.8,Comment [4]. The clear rationale for theexception is that in such a case the lawyeris induced by the contingent fee to seekthe most advantage for the client in thematter at hand, as both are interested inmaximizing the value of the literaryrights. By contrast, where the subject mat-ter of the lawyer’s representation of theclient is other than protecting and enhanc-ing the literary rights of the client, thepublicity value of steps taken or not takenin the representation could make thelawyer’s interest in the literary rights con-flict with the client’s best interest.

2. Would the sale of the inquirer’s storythat is the subject of the inquiry bebarred by Rule 1.8(c)?

The inquirer states that media repre-sentatives have approached him regard-ing a book or possibly a movie about therepresentation. The representativesapparently also have approached, orintend to approach, his client and appar-ently have offered to compensate both.

We do not believe that the present sit-uation triggers Rule 1.8(c).1 That provi-sion prohibits a lawyer from “mak[ing]or negotiat[ing] an agreement giving thelawyer literary or media rights to a por-trayal or account” based on the represen-tation (emphasis added). We believe therule prohibits a lawyer from acquiringmedia rights from the client or otherwise;

280 THE DISTRICT OF COLUMBIA BAR May 2006

1As we make clear later, this situation most

assuredly falls within the scope of Rule 1.7(b). Wediscuss the conflicts under Rule 1.7 in full detaillater on in this opinion.

it does not, however, prohibit the lawyerfrom making an agreement with mediarepresentatives with respect to his ownmedia rights.

The predecessor provision in the Codeof Professional Responsibility, DR 5-104(B), made this clear by providing:

Prior to conclusion of all aspects of thematter giving rise to his employment, alawyer shall not enter into any arrange-ment or understanding with a client . . .by which he acquires an interest in pub-lication rights with respect to the subjectmatter of his employment . . .

This provision thus simply barred thelawyer from acquiring literary rightsfrom the client. The modified version inthe present Rule 1.8(c) maintains thefocus on barring the acquisition by alawyer of literary rights, but broadensthis bar so that it is not just the client, butanyone, from whom the lawyer is barredfrom acquiring such rights.

When the D.C. Bar Board of Gover-nors recommended adoption of the Rulesof Professional Conduct, it observed onlythat the new Rule 1.8(c) was “substan-tially similar” to the Code provision, not-ing only that the term “publication”rights had been changed to “literary ormedia” rights, “a more generally inclu-sive term.” Proposed Rules of Profes-sional Conduct and Related Comments at75 (November 19, 1986) (“The JordanCommittee Report”).2 The Board of Gov-ernors did not mention that the text hadalso been changed to bar the acquisitionof media rights by the lawyer not onlyfrom the client, but from others (forexample, a client’s spouse or relative).But, as noted, with these changes thefocus of the prohibition remained on thelawyer acquiring media rights that couldlater be sold to media representatives.

The transaction contemplated by theinquirer would involve a sale of mediarights by the inquirer to media representa-

tives, not the acquisition by the inquirer ofsomeone else’s rights, and specifically,not the unconsented use by the inquirer ofconfidences or secrets of the inquirer’sclient.3 This difference takes the inquir-er’s proposed transaction outside of thelanguage of Rule 1.8(c). Equally asimportant, this factual difference is signif-icant in that in some circumstances such adistinction diminishes the potential forevil that the Rule was designed to address.In a situation of the type prohibited by theRule, the lawyer obtains media rights, sayfrom the client, and holds those rightswhile continuing to conduct the represen-tation, while intending to make a mediadeal involving those rights at some latertime. Thus the lawyer acquires and holdsan asset (the media rights) whose valuemay fluctuate as events occur in the rep-resentation. This gives the lawyer a finan-cial interest in handling the representationso as to maximize the later value of themedia rights, but that course might wellnot coincide with the course that is bestfor the client. As succinctly stated in com-ment [4] to Rule 1.8, “Measures thatmight otherwise be taken in the represen-tation of the client may detract from thepublication value of an account of the rep-resentation.” This interest is so likely toconflict with the lawyer’s interest inprocuring the best result for the client thatthe prohibition of Rule 1.8(c) is absolute;as we have noted, D.C. Rule 1.8(c) doesnot allow for the possibility of waiver inany circumstances.

In the situation posed by the inquirer, bycontrast, the lawyer does not seek to

acquire literary rights that may be the sub-ject of a later arrangement by the lawyerwith a media representative, but insteadseeks to make an arrangement now withsuch a representative, based on thelawyer’s story. As we have suggestedabove, there are many such situations thatcould create serious conflicts of interest,depending on the particular circumstances.But there are also circumstances thatwould not necessarily raise any such con-flict. For example, a lawyer might give an“account” of the matter by writing an arti-cle or delivering a lecture for a fee that wasfixed and could not vary with later devel-opments in the representation. In such asituation the lawyer’s later activity in thecase would not subsequently be influencedby any financial interest in what that feewould be, as it would be fixed andunchangeable by later developments.

Indeed there are at least some familiartransactions that are similar to the inquir-er’s in concept but do not appear ever tohave been thought to involve a violationof Rule 1.8(c). The most prominentexample would be a situation in which alawyer writes an article for a publicationabout the legal profession, or makes aspeech or appears at a seminar, where thesubject matter includes giving an“account” of current and uncompletedclient matters. Such events are extremelycommon. Some such instances haveraised other issues such as the possibilitythat they would constitute ex parte com-munications with a court (D.C. Bar LegalEthics Committee Opinion No. 5, April23, 1975) or inappropriate advertising

May 2006 THE DISTRICT OF COLUMBIA BAR 281

2In Opinion No. 202, we also pointed out that

Rule 1.8(c) is “substantially similar” to the priorCode version and also noted that the newer provi-sion “closely parallels” the former. In that opinionwe considered a situation in which a lawyer repre-sented a client in litigation that had attracted theattention of the public; during the course of that lit-igation, the client approached the lawyer also tonegotiate the sale of the literary rights to the client’sstory, with the lawyer’s fee for that representationto be a portion of the value of those rights. Weopined that while it was normally acceptable for alawyer to accept a share of the client’s literaryrights as a contingent fee in a matter involvingnegotiation of those rights with a publisher, thelawyer’s negotiating the value of those rights whilealso representing the client in litigation was barredby the Rule until that litigation was over.

3As noted above, while the inquirer states that

the inquirer will not reveal confidences or secretsof the client to the media without the client’s validconsent, he also states that the reporters may seekto make an agreement with the client seeking suchconsent. This itself raises potential issues underboth Rule 1.7(b)(4) and 1.8(c) if the inquirer wereto participate in such a waiver process.

First, we caution that for the lawyer to seek torepresent the client in such a transaction with themedia representatives would itself involve thelawyer in a further conflict of interest because thelawyer would have an interest in having a dealfavorable to the lawyer go forward and so wouldnot be in a position to advise the client as towhether the deal was in the client’s best interest.(As our Opinion 202 concludes, the final sentencein comment [4] to Rule 1.8 does not necessarilyapply where representation in the marketing of lit-erary rights occurs simultaneously with other rep-resentation of the client that might be impacted by,or have an impact on, the representation about saleof rights. See footnote 2, supra.)

Second, a transaction in which it could beargued that the lawyer effectively assisted themedia representatives in obtaining media rightsfrom the client might itself constitute at least thesubstantial equivalent of a transaction that violated

Rule 1.8(c). It would be a violation of the lawyer’slegal duty for the lawyer to use client confidencesor secrets protected by Rule 1.6 for the lawyer’sbenefit rather than the client’s. Thus, the lawyer’sobtaining a waiver of the confidentiality obligationfrom the client could amount to the lawyer’sobtaining the client’s agreement to relinquish theclient’s right to restrict publication of the materialby the lawyer—arguably the equivalent of alawyer’s making “an agreement [with the client]giving the lawyer literary or media rights” withinthe meaning of Rule 1.8(c). It appears that this wasthe situation in Harrison v. Mississippi Bar, 637 So.2d 204 (Miss. 1994). There the MississippiSupreme Court upheld the disbarment of a lawyerin part because the lawyer had violated Mississip-pi’s equivalent of D.C. Rule 1.8(c). The lawyerargued that the story she sold to a publisher wasonly the lawyer’s story, not the client’s, but theCourt noted that the contract with the publisherrequired the lawyer to obtain the consent of theclient to use of information about the client matterbeing handled by the lawyer, and further pointedout that despite the lawyer’s claim to the contrarythe lawyer still represented the client’s estate at thetime the contract was signed. It was explicitly onthat basis that the Court held that the conduct inquestion violated the Rule. 637 So. 2d at 224.

(cf. Opinion No. 41, November 22,1977), but they have never been consid-ered to constitute the acquisition of liter-ary rights so as to trigger Rule 1.8(c) orits predecessor, so far as we are aware.These types of transactions do not fallunder the language of Rule 1.8(c), andespecially since Rule 1.7 is present andwould apply to any such arrangementthat constituted a conflict of interest,there is no reason to strain the languageof Rule 1.8(c) to cover them.

That conclusion is all the more justi-fied because there are other benefits thatmay flow from some kinds of publicattention to “accounts” of ongoing legalmatters—as long as that can be donewithout violating Rule 1.7 (a subject towhich we turn below). In addition to edu-cation of the bar, as suggested in the pre-vious examples, there can also be benefitto clients whose causes may be assistedby better public understanding, and to thepublic at large from better understandingof legal issues that may affect it. Thusthere would, in at least some circum-stances, be good policy grounds to avoidoverextension of the reach of Rule 1.8(c).

3. The application of Rule 1.7(b)(4).

The situation described by the inquirerraises a serious issue under D.C. Rule1.7(b)(4). Rule 1.7(b)(4) generally pro-vides that a lawyer may not represent aclient with respect to a matter where:

the lawyer’s professional judgment onbehalf of the client will be or reasonablymay be adversely affected by thelawyer’s responsibilities to or interestsin a third party or the lawyer’s ownfinancial, business, property, or personalinterests.

This subparagraph clearly covers thevery wide range of interests or responsi-bilities that a lawyer may have that do notinvolve representation of a differentclient (conflicts created by differinginterests of multiple clients are handledby subparagraphs (b)(1), (2), and (3)) thatwill or reasonably may affect thelawyer’s ability to represent the client.Obvious examples would be such mattersas personal investments of a lawyer incompany X that might influence thelawyer’s ability to pursue a claim againstX on behalf of a client; a friendship withan officer of company X that might rea-sonably be thought to affect the lawyer’sability to represent a client in pursuing alarge claim against X; or the lawyer’sguardianship of a person who appears tohave played a role in activity that theclient wants to challenge. The broadly

worded scope of subparagraph (b)(4)shows that any kind of interest or obliga-tion of the lawyer can trigger the applica-bility of the subparagraph if the presenceof that interest could reasonably adverse-ly affect the lawyer’s ability to representa client in a matter.

The inquirer’s situation clearly createsa potential for a conflict under Rule1.7(b)(4). The inquirer proposes to makean agreement with representatives whocover the litigation the lawyer is engagedin for various media companies and whoare considering writing books or possiblyproducing a motion picture about that lit-igation. The situation as presented in theinquiry sounds as though the media repre-sentatives’ plans are not fixed; for exam-ple it is not clear whether they will seekonly to write a book or whether they willattempt to produce a motion picture. Thusit sounds as though whatever financialarrangement the media representativewould make would have some contingentfeatures, which would depend uponwhether, say, merely a book, or perhaps amovie, may be made out of the story ofthe litigation. Further, the inquirer statesthat while the primary focus of the mediarepresentatives is on the litigation and thelawyer, the lawyer’s client “would alsoreceive compensation for his life rights.”No confidential information would beused without the client’s consent.

We first observe that even if the inquir-er’s action would not violate Rule 1.8(c)because the lawyer is not seeking toacquire the literary or media rights ofanother, nonetheless something similar(at least) to the concerns underlying Rule1.8(c) may well be present in some situa-tions. In the situation posed by the inquir-er, it seems possible that because themedia’s plans as to how to present thestory are not fixed, the inquirer mightwell face a conflict between, on the onehand, obligations to do the best possiblething for the client, and, on the other, apersonal interest in having the case be thekind of story that would enhance its inter-est to the media and the public. Such asituation would present a serious conflictof interest, in our view. Indeed, anyagreement made by a lawyer with mediarepresentatives presents a conflict ofinterest if, as a practical matter, its valueto the lawyer might fluctuate dependingon later events in a related matter inwhich the lawyer is representing a client.

By contrast, a transaction with mediarepresentatives in which any financialcompensation was immediately fixed andwould not change regardless of what laterhappened in the case would be less objec-

tionable because the inquirer’s later stepsin the case would not as obviously beinfluenced by the possibility that somesteps might tend to increase the value ofthe media contract available. There stillcould be features requiring attentionunder Rule 1.7(b)(4). For example, thepublicity value of the agreement mightstill fluctuate in a meaningful way to thelawyer, depending on certain choices thatare made in the course of the litigation; orthe negotiations over the terms of anyagreement might take place during a peri-od in which the lawyer’s actions in thelitigation might well be influenced by thenegotiations themselves. The inquirershould also be extremely circumspect indescribing, in any negotiations, thoselater events in the case that the inquirerexpects to occur and should not make anyrepresentations about the future of thecase where there is any doubt at all thatsuch eventualities might occur.

The question of how, and evenwhether, a client may consent to the con-flict under Rule 1.7(c) is highly impor-tant. Valid consent may be obtained onlyafter consultation with the client, whichthe Rules define as “communication ofinformation reasonably sufficient to per-mit the client to appreciate the signifi-cance of the matter in question.” D.C.Rules, Terminology [3]. In situationsinvolved here, the question is whether thelawyer’s judgment on how to conduct therepresentation for the client might beadversely affected by the lawyer’s pecu-niary or publicity interest. There are twoimpediments to a clear appreciation bythe client of what is at stake—first, futuredevelopments in the representationinvolve possibilities that may well not bepresently understood, so that an appreci-ation of them currently might be difficultor impossible. Second, questions of theimpact on the lawyer’s judgment in car-rying out the representation involveissues peculiarly within the knowledge oflawyers but nor of clients.

As to the first of these problems, ourOpinion No. 309 comprehensively exam-ines the question of the degree to whichconsent can be valid where it is given inadvance of events that affect the scope ofthe conflict. We there concluded that avalid advance consent can be given onlywhere full consultation as described in theRules can be had, and a client has the abil-ity to give fully informed consent, inadvance. We note that the situation pre-sented here—where a conflict that arisesunder Rule 1.7(b)(4) is sought to bewaived in advance—was not specificallytreated in that opinion, but it is clear that

282 THE DISTRICT OF COLUMBIA BAR May 2006

a large part of obtaining a valid waiver ofany conflict caused by the lawyer’s nego-tiation of a contract with media represen-tatives would involve the explanation tothe client in detail of the kinds of choicesthat the lawyer is put to in litigation andthe possible impacts on those choices thatare the result of having the media con-tract. This is likely to be more difficultthan explaining the usual conflict causedby potential loyalty to another client thatarises under Rule 1.7(b)(2). Loyalty, andthe ability to act despite somewhat divid-ed loyalties, is a relatively simple conceptto understand. But the impact of thelawyer’s personal interests on thelawyer’s ability to make tactical andstrategic decisions for a client, which ispresented in a conflict arising under Rule1.7(b)(4), requires the lawyer to explain,and the client to understand, the signifi-cance to the client of influences on thelawyer’s handling of specific issues. Inthese circumstances, it would be highlyadvisable for the client to have the benefitof independent counsel to offer advice onthe scope of any adverse impact on thelawyer’s ability to provide adequate rep-resentation despite whatever influence themedia arrangement may have. If that isfor some reason not possible, the lawyershould likely obtain independent legaladvice to provide the most objective viewpossible of the lawyer’s ability to act ade-quately for the client in the circumstances.

Actually the problems involved in thissituation are more common than might besupposed. Although it might be rare toencounter a media arrangement in whicha lawyer is paid money for participatingin a story about the lawyer’s ongoing rep-resentation, many lawyers know thatworking on particular matters might drawattention and publicity that could be valu-able to them. Moreover, it is quite possi-ble that, without having had any contactwith the media concerning a particularrepresentation, a lawyer might know or atleast anticipate attention from the mediaconcerning a matter on which the lawyeris working. It may also be true that suchmedia attention is more likely if one issuepredominates (say a widely anticipatedone arising from a newly enacted statute)than another (say an older issue that mayrender the newer one irrelevant). A lawyershould always be alive to the possibilityof potential influence on the lawyer’sjudgment and ability to pursue the bestcourse for the lawyer’s client. We do notmean to suggest that such instances regu-larly, or even often, create conflicts ofinterest. Our purpose is to show that thereis a wide range of issues involving actual

or potential media attention that couldraise questions under Rule 1.7(b)(4) butdo not raise issues under Rule 1.8(c).

4. The “principle of priority” underScope Comment [5].

We have concluded above that whileRule 1.8(c) does not extend to the situa-tion presented by the inquirer, Rule1.7(b)(4) does. This situation—in whichwe essentially conclude that Rule 1.8(c)constitutes a special case of what wouldotherwise be a conflict under Rule1.7(b)(4), and that the latter may applyeven where Rule 1.8(c) does not—raisesa significant question of which Ruletakes precedence over the other that is thesubject of Scope Comment [5].

Scope Comment [5] enunciates animportant rule of interpretation. It states,in its entirety:

In interpreting these Rules, the specificshall control the general in the sense thatany rule that specifically addresses con-duct shall control the disposition of mat-ters and the outcome of such mattersshall not turn upon the application of amore general rule that arguably alsoapplies to the conduct in question. In anumber of instances, there are specificrules that address specific types of con-duct. The rule of interpretationexpressed here is meant to make it clearthat the general rule does not supplant,amend, enlarge, or extend the specificrule. So, for instance, the general termsof Rule 1.3 are not intended to governconflicts of interest, which are particu-larly discussed in Rules 1.7, 1.8, and1.9. Thus, conduct that is proper underthe specific conflicts rules is notimproper under the more general rule ofRule 1.3. Except where the principle ofpriority stated here is applicable, howev-er, compliance with one rule does notgenerally excuse compliance with otherrules. Accordingly, once a lawyer hasanalyzed the ethical considerationsunder a given rule, the lawyer must gen-erally extend the analysis to ensure com-pliance with all other applicable rules.

Scope Comment [5] makes clear thatwhere conduct is proper, either explicitlyor implicitly, under a specific rule dealingwith that type of conduct, a more generalrule should not be used to render that con-duct improper. Thus, for example, iflawyer A moves from partnership in firmX to partnership in firm Y, and firm Y isadverse to firm X on a heated matter,which, however, lawyer A has had nothingto do with and has learned nothing of,Rule 1.10(b) provides, as a result of thebalance struck in that Rule, that firm Y

does not have a conflict of interest despitethe fact that A used to be a partner in firmX. Scope Comment [5] provides that nogeneral rule, such as Rule 1.3 (whichrequires that a lawyer represent a client“zealously and diligently”), should becited to upset this balance. The reason isthat the conflict of interest rules exist, ulti-mately, to assure that no such conflictshould impede a lawyer from acting “zeal-ously and diligently” for a client. Thus,when Rule 1.10(b) was written, it tookinto account, and balanced, the considera-tions behind Rule 1.3. Citing Rule 1.3 in aparticular case to invalidate some activitypermissible under Rule 1.10(b) wouldupset that balance written into the Ruleand disserve the other considerations.4

None of this pattern is present in con-sidering Rules 1.8(c) and 1.7(b)(4). First,this is a case where the inquirer’s situa-tion does not fall precisely under theterms of the specific Rule—1.8(c). Thereis no indication at all, from the purpose,terms, or history of Rule 1.8(c), that itstruck any kind of a balance or was in anyother way intended to exonerate behaviorthat was similar to, but fell outside of, the

4Note that even though Rule 1.10(b) implicitly,

rather than explicitly, provides that a firm is not dis-qualified where a lawyer has moved to it fromanother firm, and at the first firm the lawyer had notworked on the matter at issue or had acquired noinformation protected by Rule 1.6 concerning thatmatter, it clearly intends that result. First, com-ments [10] and [11] to that Rule are quite explicitas to the balance of competing interests that isexpressed in that Rule. Second, subparagraph (b)states a rule for lawyers moving between firms thatis materially narrower than the rule stated in sub-paragraph (a); it is inescapable from the order ofthese paragraphs that the drafters intended subpara-graph (b) to extend only as far as it does rather thanintending that other Rules could supplement it sothat it would extend as far as subparagraph (a) does.There is nothing about Rule 1.8(c) that indicatesthat the drafters wanted similarly to immunize con-duct that fell outside of the particular circumstancescovered by that Rule. Similarly, Rule 1.7(d) allowsa lawyer to continue representation of a clientdespite the presence of a conflict of interest arisingunder Rule 1.7(b) (1) and the refusal of the clientasserting the conflict to waive it, where the conflictwas “thrust upon” the first client and lawyerbecause it had not been reasonably foreseeable atthe outset of the representation and arose only afterthe representation had commenced. See our Opin-ion No. 292 (1999). And the proviso to Rule 1.10(a) creates an exception to the general rule requir-ing all lawyers in the firm to be disqualified whereone would be. The exception does not require dis-qualification of an entire firm where a firm lawyeris disqualified because the lawyer was consulted bya potential client who did not become a client. Seealso comment [7] to Rule 1.10. This accommoda-tion encourages full consultation between prospec-tive clients and lawyers. See ProposedAmendments to the District of Columbia Rules ofProfessional Conduct (as adopted by the Board ofGovernors, March 8, 1994) at 36-37.

May 2006 THE DISTRICT OF COLUMBIA BAR 283

defined scope of behavior that it covers.Instead, Rule 1.8 simply mandates partic-ular treatment of a specific fact situationand says nothing, explicitly or implicitly,about other situations that might be simi-lar. This is in keeping with the generalcharacter of Rule 1.8, which “deal[s]with a series of specific situations inwhich the lawyer’s own interests—oftenher financial interests—may conflict withthe interests of a client. Many of the con-flicts of interest that are per se prohibitedare catalogued in this rule.” 1 Hazard &Hodes, The Law of Lawyering, §10.4 atp. 10–14. (3d ed 2004 Supp.)5

Some situations are so fraught with dan-ger of serious impropriety . . . that a perse rule of disqualification is imposed—aprophylactic ban that sometimes is notwaivable, even by a sophisticated andwell-counseled client. In these situa-tions, (some of which are catalogued inRule 1.8) the public interest in maintain-ing public confidence in the legal sys-tem outweighs the interests of individuallawyers and clients in freely contractingwith each other.

Id., §10.4, at 10-12. Thus, as we haveconcluded, Rule 1.8(c) creates a specialclass of per se rules covering situations asto which the drafters concluded that thelevel of potential impropriety andadverse impact on the lawyer’s ability torepresent the client properly is so greatthat such a specific rule is warranted.6

But that alone does not mean that wherea situation is presented that does not fallunder the strict Rule 1.8(c) formula itshould, by virtue of Scope Comment [5],escape any consideration under Rule1.7(b)(4). This situation accordingly fallsunder the more general doctrineexpressed in that comment: “Exceptwhere the principle of priority stated hereis applicable, however, compliance withone rule does not generally excuse com-pliance with other rules.”

Approved: January 2006Published: January 2006

Opinion 335

Whether a Lawyer May, as Part of aSettlement Agreement, Prohibit theOther Party’s Lawyer From Disclos-ing Publicly Available InformationAbout the Case

A settlement agreement may not com-pel counsel to keep confidential and notfurther disclose in promotional materialsor on law firm websites public informa-tion about the case, such as the name ofthe opponent, the allegations set forth inthe complaint on file, or the fact that thecase has settled. Such conditions have thepurpose and effect of preventing counselfrom informing potential clients of theirexperience and expertise, thereby makingit difficult for future clients to identifywell-qualified counsel and employ themto bring similar cases. By diminishing theopportunity for the lawyer to representfuture clients in similar matters, suchconditions violates D.C. Rule 5.6(b),which prohibits lawyers from offering ormaking a settlement agreement thatrestricts a lawyer’s right to practice. Asettlement agreement may provide thatthe terms of the settlement and other non-public information may be kept confiden-tial, but it may not require that publicinformation be confidential.

Applicable Rules• Rule 1.2—Scope of Representation• Rule 1.6—Confidentiality• Rule 5.6—Restrictions On Right To

Practice• Rule 7.1—Communications Con-

cerning a Lawyer’s Services

Inquiry

A defendant wishes to settle the claimof the inquirer’s client conditioned on anagreement that the inquirer will keep con-fidential not only the terms of the settle-ment but also the fact of the settlement,the identity of the defendant, and the alle-gations of the complaint. The complainthas been filed and is not under seal. More-over, the complaint has received substan-tial media attention. The inquirer’s lawfirm has reported developments in the lit-igation on its website, we assume with theconsent of his client. Discussions aboutthe firm’s experience on its website arepart of the firm’s effort to attract newclients. The inquirer asks whether thedefendant can include in a settlementagreement a provision requiring him toremove information about the case fromthe firm’s website and not to disclose fur-ther on the website or in other promotion-al materials, otherwise public informationsuch as the defendant’s name, the allega-tions of the complaint, and the fact (butnot the terms) of settlement.

Discussion

Settlements are frequently conditionedon the confidentiality of their terms. Therationale for this practice is that the termsof a settlement constitute non-publicinformation learned by a lawyer in thecourse of the representation, which, if theclient requests be held inviolate, are“secrets” within the definition of D.C.Rule 1.6(b). Subject to certain exceptions,a lawyer is not permitted to reveal hisclient’s secrets. D.C. Rule 1.6(a).1 In mostinstances, we suspect, a plaintiff’s requestthat the terms of a settlement remain con-fidential results from the defendant’sinsistence and the plaintiff’s indifference.Nonetheless, there are undoubtedly cir-cumstances in which a plaintiff has herown motives for wishing settlement termsto remain confidential, such as preventingother persons from learning precisely howmuch (or little) she has recovered.

5Other such provisions in Rule 1.8 include at

least subparagraphs (a) (special rules limitinglawyer’s ability to enter into a business transactionwith a client); (b) (lawyer may not prepare aninstrument that gives the lawyer or a relative a sub-stantial gift from the client, except where thelawyer is related to the client), (d) limits lawyer’sability to provide financial assistance to a client inlitigation or administrative proceedings),and (e)(limits on the lawyer’s ability to receive fees fromsomeone other than the client). In each such situa-tion, just as with subparagraph 1.8(c), in theabsence of these provisions the activity in questionwould involve Rule 1.7(b)(4). But, rather than tak-ing into account policies or considerations foreignto those applicable under Rule 1.7, these Rule 1.8provisions dictate precisely and uniformly how toapply the conditions underlying Rule 1.7(b)(4).

6In certain circumstances, unlike subparagraph

(c), Rule 1.8 does go further and affirmatively pro-vide a safe haven for particular conduct. Examplesinclude the observation in comment [1] that thesevere restrictions on lawyers contracting withtheir clients do not include “standard commercialtransactions”, and Rule 1.8(d)(1) and (2), whichexplicitly allow lawyers to advance or guaranteecertain types of financial assistance to clients. In atleast these instances, portions of Rule 1.8 them-selves reflect balances, which, under Scope Com-ment [5], should not be set at naught by other,more general Rules. To illustrate, we consider ahypothetical situation where a lawyer has a client

that is an automobile dealership, from which thelawyer buys automobiles for personal use, gettinga discount. In response to a challenge of this prac-tice as taking undue advantage of the client, thelawyer seeks to establish that the prices the lawyerpaid for the automobiles were such that the dealsconstituted “standard commercial transactions”within the meaning of comment [1] to Rule 1.8 andthus outside the scope of Rule 1.8(a). A conclusionthat regardless of whether the deals viewed objec-tively were “standard” and thus proper under Rule1.8(a), the practice still violated Rule 1.7(b)(4)would violate the doctrine established by ScopeComment [5].

1See ABA Comm. on Ethics and Prof'l Respon-

sibility, Formal Op. 00-417 (2000); Colo. Bar EthicsComm., Formal Op. 92 (1993); N.M. Bar EthicsAdv. Op. Comm., Adv. Op. No. 1985-5 (1985).

284 THE DISTRICT OF COLUMBIA BAR September 2006

The Inquiry, however, goes beyond theconfidentiality of the settlement terms,and raises the question whether, as part ofthe settlement, one lawyer may prohibitanother from further disclosure ofalready public information, including thename of the defendant and the allegationsof the complaint, as well as informationthat can readily be inferred from the pub-lic record, such as the fact that the litiga-tion settled. Once the complaint was filedin court, the name of the defendant andthe plaintiff’s allegations against it areavailable to the public. While terms of asettlement are frequently confidential,the fact of settlement rarely is. If a settle-ment is not announced by the parties, thepublic record may not actually disclosethat it has occurred, although in caseswhere settlements require court approval,it will. But the voluntary dismissal willalert most knowledgeable persons thatthere has almost certainly been a settle-ment, and in most instances, a number ofpeople will become aware that the casehas settled.2

Nevertheless, a lawyer has a duty toabide by his client’s decision whether toaccept an offer of settlement. D.C. Rule1.2(a). This is so even if the lawyerbelieves the decision to be unwise. D.C.Rule 5.6(b), however, prohibits lawyersfrom including certain types of terms insettlement agreements: A lawyer may notparticipate in offering or making “anagreement in which a restriction on thelawyer’s right to practice is part of the set-tlement of a controversy between par-ties.” This is generally understood tomean an explicit agreement as part of thesettlement prohibiting plaintiff’s counselfrom representing other persons.3 Thus,for example, a settlement of a casebrought on behalf of consumers againstthe manufacturer of a product may not beconditioned on plaintiffs’ counsel agree-ing not to represent other consumers ofthe product against the settling manufac-turer.4 This same rule, or a similar ver-sion, also has been interpreted to prohibitan agreement not to use informationlearned in the course of the case in afuture representation against the sameparty. Enforcement of such an agreementmight effectively prevent the lawyer from

representing future clients since the onlyway for the lawyer to ensure that he doesnot use information that he has learned isto decline to represent anyone else in asimilar case.5 Other jurisdictions alsohave prohibited similar clauses in settle-ment agreements restricting “plaintiff orplaintiff’s counsel from using case infor-mation to assist other litigants or claim-ants;”6 requiring plaintiff’s counsel toturn over her entire file, including herwork product, to defense counsel to besealed;7 “barring a lawyer representing asettling claimant from subpoenaing cer-tain records or fact witnesses in futureactions against the defending party;”8 orforbidding disclosure of “the business oroperations of the defendant corporation”9

An underlying rationale for all these opin-ions is that the prohibited provisionsrestrict the lawyer’s right to practice byeffectively preventing him or his firmfrom representing clients in certain kindsof cases against the settling party.

Underlying each of the opinions disap-proving restrictions on the future conductof lawyers, under the rule equivalent toD.C. Rule 5.6, is the intent to preserve thepublic’s access to lawyers who, becauseof their background and experience,might be the best available talent to rep-resent future litigants in similar cases,perhaps against the same opponent.10 Asimilar rationale underlies the interpreta-tion of D.C. Rule 5.6(a), forbiddingrestrictions on lawyers moving from onefirm to another.11 We believe that the pur-pose and effect of the proposed condition

on the inquirer and his firm12 is to pre-vent other potential clients from identify-ing lawyers with the relevant experienceand expertise to bring similar actions.While it places no direct restrictions onthe inquirer’s ability to bring such anaction, even against the same defendant ifhe is retained to do so, it does restrict hisability to inform potential clients of hisexperience. As such, it interferes with thebasic principle that D.C. Rule 5.6 servesto protect: that clients should have theopportunity to retain the best lawyersthey can employ to represent them. Wereclauses such as these to be regularlyincorporated in settlement agreements,lawyers would be prevented from dis-closing their relevant experience, andclients would be hampered in identifyingexperienced lawyers.

There was a time, of course, before theadvent of websites and marketing depart-ments and lawyer advertising, when pub-lic disclosures of relevant expertise werefrowned upon, if not outright prohibited.Those days are gone.13 But even then, ifasked, a lawyer was able to disclose pub-lic information about cases that he hadhandled if a potential client inquired as tohis experience. If the conditions proposedby the defendant could be part of a settle-ment agreement, why could the defen-dant not propose that the lawyer neverspeak of the case again unless compelledto do so by formal process? This wouldbring about a situation where a lawyercould not reveal to a potential client pub-lic record information that would demon-strate his experience and ability. The onlyrestrictions on lawyer advertising in theDistrict of Columbia are that all claimsmust be truthful and subject to substanti-ation. D.C. Rule 7.1.14 The implication ofthis liberal rule permitting advertising isthat the consumers of legal services—like the consumers of other products andservices—benefit from the disseminationof accurate information in choosing legalrepresentation. Given that policy, webelieve confidentiality provisions in set-

2For example, when a case settles, the prospec-

tive witnesses are informed. If the case drawsmedia attention, as this one has, the media becomesaware of the settlement when the case is dismissed.

3See D.C. Rule 5.6, Comment [2].

4In re Hager, 812 A.2d 904, 918-19 (D.C.

2002). See generally D.C. Ethics Op. 35 (1977).

5ABA Comm. on Ethics and Prof'l Responsibil-

ity, Formal Op. 00-417 (2000).

6Tenn. Bd. of Prof’l Resp., Formal Op. 98-F-

141 (1998).

7N.M. Bar Ethics Adv. Op. Comm., Adv. Op.

1985-5 (1985). This opinion says, cryptically, sucha restriction may in some, but not necessarily all,cases inhibit the representation of future clients.

8Colo. Bar Ethics Comm., Formal Op. 92

(1993).

9N.Y. State Bar Ass’n Comm. on Prof’l Ethics,

Formal Op. 730 (2000).

10 E.g., N.Y. State Bar Ass’n Comm. on Prof’l

Ethics, Formal Op. 730 (2000).

11 D.C. Ethics Op. 325 (2004). See Neuman v.

Akman, 715 A.2d 127, 131 (D.C. 1998). The court inNewman interpreted D.C. Rule 5.6(a), which pro-hibits employment agreements restricting a lawyer’sright to practice after termination, to apply to a partnership agreement that denied certain financial bene-fits to departing partners. Such provisions might deterlawyers from joining new firms, which would limittheir ability to offer clients their services in an orga-nizational setting that might better serve the clients.

12 Lawyers are generally not parties to settle-

ment agreements, but they must adhere to the con-fidentiality provisions either because their clientsimplicitly instruct them to keep matters confiden-tial, with which request the lawyers must complypursuant to D.C. Rule 1.6, or because violating theconfidentiality provision would undo the settle-ment and damage their clients, in violation of D.C.Rules 1.2 and 1.3(b).

13 Zauderer v. Office of Disciplinary Counsel of

Supreme Court of Ohio, 471 U.S. 626 (1985); Batesv. State Bar of Arizona, 433 U.S. 350 (1977).

14 See D.C. Ethics Op. 249 (1994).

September 2006 THE DISTRICT OF COLUMBIA BAR 285

tlement agreements that prohibit a lawyerfrom disclosing such public informationas the name of the defendant, the publicallegations, and the fact of settlementwould violate D.C. Rule 5.6(b). Suchprovisions restrict a lawyer’s right topractice by interfering with his ability toinform future potential clients of his rele-vant experience and expertise.

If a client withholds permission for herlawyer to disclose public information, weagree that the lawyer must keep the infor-mation secret and that D.C. Rule 1.6applies.15 A plaintiff settling a sexualharassment claim, for example, may wishto protect her privacy by not allowing herlawyer to publicize further any informa-tion about her case. A settlement agree-ment may require a lawyer to keep non-public information confidential. It is wellestablished that non-public information,such as the terms of a settlement, mayremain confidential.16 In addition to set-tlement terms, other non-public matterscan be kept confidential, such as disputesthat are never made public but which aredecided through confidential arbitrationprocedures. The line that we draw is thatthe confidentiality of otherwise publicinformation cannot be part of a settlementagreement even if the lawyer’s clientagrees that such a provision be included.Once the matter is public, a settlementagreement may not impose confidentiali-ty on otherwise public matters withoutviolating D.C. Rule 5.6(b). A lawyer maynot propose or agree to such a confiden-tiality provision. In drawing this line weare striking a balance consistent with therationale of the Rules and with widelyaccepted practices. While it might beargued that a lawyer would be better ableto market his services, and a client betterable to identify a qualified representative,if no information about any case, includ-ing the terms of settlement, could be keptconfidential, such a decision is contrary tolong-standing accepted practices withrespect to settlement agreements. On theother hand, if the parties can agree to keepall public information about all cases con-fidential, clients’ ability to identify quali-fied lawyers would be greatly restricted.A reasonable resolution is to draw a line

between information that is public at thetime of settlement and information thatremains confidential. New York seems tohave taken a similar approach.17 This bal-ance between the well-accepted practiceof keeping non-public settlements confi-dential, with the concomitant effect on thewillingness of parties to settle, and allow-ing clients to identify experienced coun-sel by prohibiting confidentiality clausesin settlement agreements of otherwisepublic information, strikes us as a reason-able application of Rule 5.6(b). It also hasthe virtue of offering clear guidance topractitioners.

Our broad reading of D.C. Rule 5.6(b)is consistent with the Court of Appeals’equally broad interpretation of Rule5.6(a). Almost any financial disincentiveto a lawyer’s changing firms has beendetermined to be an impediment that vio-lates Rule 5.6(a) because it interferes withclients’ ability to choose lawyers.18 A sim-ilar approach leads to the conclusion thatthe proposed settlement provision, byinhibiting a lawyer’s ability to attractclients, interferes with clients’ ability toobtain the most competent representation.

We acknowledge that confidentialityprovisions, such as the one at issue, mighthave value that the client can trade inorder to get better terms from the otherside. If a lawyer may not agree to such aprovision, he deprives his client of thatvalue. Yet an agreement that the lawyerwill not represent future clients againstthe settling defendant also has value thathis client could trade. In most cases, wesuspect the value of the lawyer’s agree-ment not to sue again exceeds the value ofthe prohibition on further disclosing pub-lic information. Yet the Rules of Profes-sional Conduct prohibit such agreementsnot to sue as part of settlements. This is apolicy choice that the value to futureclients of the ability to choose the bestlawyer to represent them exceeds theharm to the current client of not being ableto trade for consideration her lawyer’sability to sue the settling defendant in thefuture. Moreover, when such settlementterms are taken off the table because theyare prohibited, clients are not harmed. Ifall parties are prohibited from agreeing tosuch provisions, they have no value. Itseems improbable that if such confiden-

tiality clauses are prohibited to all liti-gants, there would be any measurableeffect on the number of settlements or onthe value of those settlements.

We emphasize, however, that if a clientwithholds permission for her lawyer todisclose public information, the lawyershould comply with his client’s wishes.D.C. Rule 5.6(b) concerns only settlementagreements. If a client wishes her lawyernot to disclose further public information,she does not need the mechanism of a settlement agreement to enforce herinstructions. The only reason to make con-fidentiality a provision of the settlementagreement is to give the opposing party amechanism to enforce confidentiality. Webelieve such opponent-driven secrecyclauses are restrictions on the lawyer’sright to practice in violation of Rule5.6(b).

Approved: May 16, 2006Published: July 2006

Opinion 336

A Lawyer’s Fiduciary Role as aCourt-Appointed Guardian of anIncapacitated Individual

l A lawyer who has been appointed asa guardian of an incapacitated individual(but who is not acting as an attorney forthe incapacitated individual) must notknowingly make a false statement ofmaterial fact or law to a tribunal or other-wise engage in conduct involving dishon-esty or misrepresentation. A lawyeracting as a guardian who assists the inca-pacitated individual in obtaining govern-ment benefits, but then subsequentlylearns that the incapacitated individual’strue identity is not as it has been repre-sented may well be required under appli-cable law to disclose the correctinformation. Moreover, a lawyer whoreceives information clearly establishingthat a fraud has been perpetrated on a tri-bunal must reveal the fraud; there is noduty of confidentiality imposed by theRules of Professional Conduct that wouldprevent the lawyer acting solely as aguardian from making such a disclosure.

Applicable Rulesl Rule 3.3—Candor Toward the Tribunall Rule 8.4—Misconduct

Inquiry

The inquirer, a member of the Districtof Columbia Bar, has been appointed by

15 Cf. Sealed Party v. Sealed Party, 2006 U.S.

Dist. LEXIS 28392 (S.D. Tex. 2006) (Under Texaslaw, a lawyer violates his fiduciary duty to a formerclient by revealing public information about a casewithout obtaining the client’s consent).

16 ABA Comm. on Ethics and Prof'l Responsi-

bility, Formal Op. 00-417 (2000); Colo. Bar EthicsComm., Formal Op. 92 (1993); N.M. Bar EthicsAdv. Op. Comm., Adv. Op. 1985-5 (1985).

17 A settlement agreement may not impose on a

lawyer a higher degree of confidentiality than thelawyer owes his own client. N.Y. State Bar Ass’nComm. on Prof’l Ethics, Formal Op. 730 (2000).

18 See Neuman v. Akman, note 11 supra; D.C.

Ethics Op. 241 (1993); D.C. Ethics Op. 325 (2004).

286 THE DISTRICT OF COLUMBIA BAR December 2006

the Probate Division of the SuperiorCourt of the District of Columbia to serveas a “permanent general guardian[]” of anincapacitated individual, with the powersand duties set forth in D.C. Code § 21-2047.1 He has asked the Committee forguidance on how to proceed on the fol-lowing set of facts. Prior to the inquirer’sappointment as guardian of the incapaci-tated individual, the incapacitated indi-vidual had suffered a stroke that left himpartially paralyzed and required that he behospitalized. He presented a name andsocial security number at the time ofadmission to the hospital. The Court actedon the assumption that the name andsocial security number were legitimate.The inquirer has determined categoricallythat the incapacitated individual’s identityis false, but he has no way of determiningthe incapacitated individual’s true identi-ty. The incapacitated individual is animmigrant, but the inquirer has beenunable to determine his status or to locateany family members. He is presumed tobe homeless, is gravely ill, and cannotcare for himself. He is totally nonverbaland is unable to write or comprehendcommunications.

Before learning that the individual’sidentity was false, the inquirer used thesocial security number and other identify-ing information the incapacitated individ-ual provided to obtain Medicaid and socialsecurity benefits and to place the incapaci-tated individual in a nursing home.2 Pur-suant to D.C. Code § 21-2047, the inquirer,as guardian, has responsibility for the care,custody, and control of the incapacitatedindividual, including, among other respon-sibilities, discretion to take appropriateaction to compel performance by any per-son of a duty to support the incapacitatedindividual and pay sums for his welfare;an obligation to maintain sufficient contactwith the incapacitated individual to knowthe incapacitated individual’s capacities,limitations, needs, opportunities, andphysical and mental health; an obligationto take care of the incapacitated individ-ual’s personal effects; and an obligation toconserve any excess money for the inca-pacitated individual’s future needs. (In thiscase, the only funds at issue are those thatthe incapacitated individual has received

from government assistance programs).The inquirer has determined that the inca-pacitated individual cannot be safely dis-charged from the nursing home.

The inquirer seeks guidance on how toresolve an apparent conflict between hisduties under the District of ColumbiaRules of Professional Conduct (“Rules”)and the District of Columbia guardian-ship statute. In particular, the inquirerwants to know whether he may continueto use the name that the incapacitatedindividual has been using; whether he hasany affirmative duty to disclose informa-tion about the incapacitated individual’sfalse identity to third parties; and whetherhe must follow the District of Columbiaguardianship laws or the Rules whenevera conflict between them arises.

Discussion

As we understand the facts of theinquiry, the inquirer is not serving ascounsel to the incapacitated individual.Rather, the inquirer has the statutorypowers and duties enumerated in theguardianship statute under which he wasappointed.3 Moreover, the inquirer hasgiven no indication that an attorney-client relationship existed prior to theindividual’s incapacity.

We believe the fact that the incapaci-tated individual has never had the abilityto communicate with the inquirer or par-ticipate in decisions about his welfaresupports the conclusion that no lawyer-client relationship has been formed. Asnoted by the ABA Standing Committeeon Ethics and Professional Responsibili-ty, a “client-lawyer relationship presumesthat there can be effective communica-tion between client and lawyer, and thatthe client, after consultation with thelawyer, can make considered decisionsabout the objectives of the representation

and the means of achieving those objec-tives.” ABA Formal Op. 96-404 (1996);see also NC Bar Formal Ethics Op. 11(2005) (A lawyer appointed as a guardianad litem for a parent with diminishedcapacity in a Termination of ParentalRights action does not have a lawyer-client relationship with the parent).Absent information that would indicatesuch a relationship ever existed betweenthe inquirer and the incapacitated indi-vidual, we believe that it is reasonable toconclude that no such relationship exists.

Certain Rules of Professional Conductare applicable to the inquirer’s conductnotwithstanding the fact that the inquireris not acting as the incapacitated individ-ual’s counsel. Although some Rulesapply only if a client-lawyer relationshiphas been formed, see, e.g., Rules 1.2; 1.6;1.16, others apply to members of the barregardless of whether they are engaged inprofessional activities. Specifically, D.C.Rules 3.3(a)(1), 3.3(d), and 8.4(c) governthe inquirer’s conduct, even though he isnot functioning as counsel to the incapac-itated individual.

Rule 3.3(a)(1), which mandates candorto a tribunal, provides that “a lawyer shallnot knowingly . . . make a false statementof material fact or law to a tribunal.”Comment [2] to Rule 3.3 provides that,“[t]here may be circumstances wherefailure to make a disclosure is the equiv-alent of an affirmative misrepresenta-tion.” Rule 3.3(d) provides in pertinentpart that “[a] lawyer who receives infor-mation clearly establishing that a fraudhas been perpetrated upon the tribunalshall promptly reveal the fraud to the tri-bunal unless compliance with this dutywould require disclosure of informationotherwise protected by Rule 1.6, in whichcase the lawyer shall promptly call uponthe client to rectify the fraud.”4 Rule8.4(c) provides that “it is professionalmisconduct for a lawyer to . . engage inconduct involving dishonesty, fraud,deceit, or misrepresentation.”

The Rules define “tribunal” broadly toinclude regulatory agencies that renderdecisions of a judicial or quasi-judicialnature, regardless of the degree of for-mality or informality of the proceedings.

1Letter of Guardianship Issued Pursuant to

Original Order of Appointment under Guardianshipand Protective Proceeding Act of 1986, EffectiveSeptember 30, 1989.

2It is not clear from the inquiry to whom the

incapacitated individual initially provided this infor-mation. The inquirer says he presumed the individ-ual had “borrowed” the identifying information.

3Appointment of a lawyer as guardian for an

incapacitated individual does not create an attor-ney-client relationship where none existed previ-ously, and a guardian under the District ofColumbia statute is not required to be a lawyer. SeeD.C. Code § 21-2043, which provides that “anyqualified person may be appointed guardian of anincapacitated individual.” The statute also lists aspriority for consideration for guardianship appoint-ment qualified spouses, adult children, parents, andrelatives of the incapacitated individual; it doesinclude a prerequisite that a guardian be qualifiedto serve as counsel for the incapacitated individualor any requirement that a guardian serve as coun-sel. This is different from the situation where alawyer is appointed as a guardian ad litem. In D.C.Ethics Op. 295 (2000), we concluded that a lawyerappointed as a guardian ad litem in a child abuseand neglect proceeding is properly considered to bethe child’s lawyer.

4Whether or not the incapacitated individual

committed fraud when originally presenting hisfalse identity—a question that we have no occasionto address here—the inquirer has received “infor-mation clearly establishing that a fraud has beenperpetrated upon the tribunal,” and must, therefore,reveal the fraud to the tribunal unless revealing itwould violate Rule 1.6. However, as we explainabove, Rule 1.6 does not apply here because theincapacitated individual is not the inquirer’s client.

July 2007 THE DISTRICT OF COLUMBIA BAR 287

D.C. Rules, Terminology. Accordingly, ifthe inquirer, in performing his duties asguardian, finds it necessary to appear at ahearing before an agency that determinesentitlement to benefits, Rule 3.3(a)(1)would apply to the inquirer’s conductbefore that tribunal.

The inquirer is obligated under theguardianship statute to “report in writingthe condition of the ward and of the inca-pacitated individual’s estate . . . at leastsemi-annually.” D.C. Code § 21-2047.Even though there has been no findingthat the incapacitated individual has therequisite state of mind to have committedfraud or a crime, the inquirer hasobtained “conclusive” evidence that theincapacitated individual is not who hepurports to be. Accordingly, the inquirerhas an affirmative duty to “reveal thefraud to the tribunal.” D.C. Rule 3.3(d).Indeed, withholding the fact that the inca-pacitated individual had obtained bene-fits using a false name and social securitynumber would likely constitute a “cir-cumstance[] where the failure to make adisclosure is the equivalent of an affirma-tive misrepresentation.” D.C. Rule 3.3,Comment [2].

Whether appearing before a tribunal,completing paperwork to continue bene-fits, attesting to guardianship of the inca-pacitated individual, or cashing theincapacitated individual’s benefit checks,the inquirer must, at all times, complywith the requirements of Rule 8.4(c),which prohibits conduct involving dis-honesty, fraud, deceit, or misrepresenta-tion. Virtually any conduct by theinquirer that relies on or otherwise usesinformation the inquirer knows to befalse would constitute dishonesty, deceit,or misrepresentation, even if the conductis not legally fraudulent.

Conclusion

The inquirer may not continue to usethe name that the incapacitated individualis using; we believe that failure to dis-close the false identity would be theequivalent of misrepresentation. Thismatter presents no conflict between Dis-trict of Columbia guardianship law andthe Rules of Professional Conduct.

Approved: May 2006Published: September 2006

Opinion 337

Lawyer as Expert Witness

A lawyer serving as an expert witnessto testify on behalf of a party does notthereby establish an attorney-client rela-tionship with that party. Therefore, D.C.Rule 1.9 governing conflicts of interestwith former clients would not apply toprohibit a lawyer from subsequently tak-ing an adverse position to the party forwhom the lawyer testified as an expertwitness, even where the matter for whichthe lawyer testified and the matterinvolved in the subsequent representationare substantially related to one another.However, any firm that hires a lawyer asan expert witness should assure that thelawyer’s role as expert witness is madeclear and should obtain the client’sinformed consent if the expert’s rolechanges to that of co-counsel.

Applicable Rulesl Rule 1.4 (Communication)l Rule 1.6 (Confidentiality of Infor-

mation)l Rule 1.7 (Conflict of Interest: General)l Rule 1.9 (Conflict of Interest: For-

mer Client)l Rule 1.10 (Imputed Disqualification:

General Rule)l Rule 8.4 (Misconduct)

Inquiry

We have received an inquiry concern-ing the obligations of a lawyer who actsas an expert witness. The Inquirer is anattorney who has served as an expert wit-ness in litigation involving bank regulato-ry and supervisory matters. She has beenasked to provide expert testimony onbehalf of an individual plaintiff who bor-rowed money from a savings bank thatwas placed in federal receivership andhad its assets (including the loan at issue)sold to another financial institution.

The defendant bank’s attorney hasobjected to the Inquirer’s serving as anexpert witness because one or both of thelaw firms with whom the Inquirer wasformerly employed did legal work for thedefendant bank in prior years. For thepurposes of this Opinion, we have beenasked to assume that the D.C. Rulesapply and that the prior representation ofthe defendant bank by the Inquirer’s for-mer law firms involved neither the plain-tiff in the current lawsuit (for whom theInquirer wishes to testify) nor the plain-tiff’s loan, which is the sole subject of thesuit. The Inquirer has never worked on

any previous matter for the defendantbank, and neither has the law firm withwhich she is currently employed.

Discussion

A. A Lawyer Serving Solely as an ExpertWitness Does Not Thereby Create anAttorney-Client Relationship

A lawyer specializing in a particularlegal subject may be engaged to serve as anexpert witness who is expected to testify ata trial or hearing. As a general matter, aclient-lawyer relationship can come intobeing as a result of reasonable expectationsof the client and a failure of the lawyer todispel these expectations. See D.C. BarEthics Op. 316 (2002) (recognizing thatwhat conduct gives rise to an attorney-client relationship is one of substantive lawin the relevant jurisdiction but that “[m]anycourts look to the reasonable expectationsand reliance of the putative client”); seealso ABA Formal Op. 95-390 at 8. Clientscan reasonably expect that lawyers whomthey consult to perform legal services forthem are bound by certain basic profes-sional obligations, including the duties ofconfidentiality, see D.C. Rule 1.6, and theavoidance of conflicts of interest, see D.C.Rule 1.7. Effective February 1, 2007, alawyer shall also be subject to the D.C.Rules of Professional Conduct with respectto the provision of “law-related services,”which are defined as “services that mightreasonably be performed in conjunctionwith and in substance are related to theprovision of legal services.” D.C. Rule5.7(b) (eff. Feb. 1, 2007).

We believe, however, that if a lawyerserves solely as an expert witness onbehalf of another law firm’s client,1 andthe law firm explains this role to the clientat the outset, then the expert witnesswould not typically have an attorney-client relationship with the party forwhom she may be called to testify. Alawyer who is employed to testify aboutrequirements of law or standards of legalpractice, for example, acts like any non-

288 THE DISTRICT OF COLUMBIA BAR July 2007

1This question is distinct from a consultant pro-

viding expert legal advice to a firm and/or its client.A legal consultant may act as a lawyer representingthe client, rather than as a witness. The lawyer asexpert consultant may act in the role of co-counselin the matter as to the area upon which she is con-sulted and as such is subject to all of the D.C. Rulesof Professional Conduct. There are a wide varietyof circumstances in which a lawyer acts as a con-sultant and may thereby be undertaking a represen-tation. See also D.C. Rule 1.6(e)(6) (eff. Feb. 1,2007) (permitting a lawyer who consults withanother lawyer to use or reveal client confidencesand secrets “to the extent reasonably necessary tosecure legal advice”).

lawyer expert witness. The expert pro-vides evidence that lies within her specialarea of knowledge by reason of trainingand experience and has a duty to providethe court, on behalf of the other law firmand its client, truthful and accurate infor-mation. Towards this end, the lawyer serv-ing as an expert witness may reviewselected discovery materials, suggest fac-tual support for her expected testimony,and exchange legal authority applicable toher testimony with the law firm. The testi-fying expert also may help the law firm todefine potential areas for further inquiry.

She nevertheless is presented as anobjective witness and must even provideopinions adverse to the party for whomshe expects to testify if frankness so dic-tates. A duty to advance a client’s objec-tives diligently through all lawfulmeasures, which is inherent in a client-lawyer relationship, see D.C. Rule 1.3, isinconsistent with the role of an expert wit-ness. Moreover, if an expert may testify attrial and her name has been provided toopposing counsel under procedural rules,she may be deposed by the opposingparty. Communications between theexpert and the retaining law firm or itsclient used by the expert in preparing hertestimony ordinarily are discoverable.

The ABA has issued an opinion consis-tent with this conclusion. See ABA FormalOp. 97-407. Similarly, most state bar ethicscommittees that have considered the issuehave rendered opinions that support theconclusion that a lawyer employed as anexpert witness does not form a client-lawyer relationship with the party forwhom she is engaged to testify. See, e.g.,Virginia State Bar Ethics Op. 1884 (1989)(noting that if an attorney serves purely asan expert witness, the Code of Profession-al Responsibility is inapplicable and doesnot preclude service as an expert witnesson different issues for both parties of anaction); State Bar of S.D., Ethics Comm.Op. 91-22 (1992) (lawyer serving as expertwitness for insurance company A defend-ing a bad faith claim brought by insurancecompany B may represent an insured ofinsurance company B in an unrelated claimagainst a third party, in part because insur-ance company A is not the expert witness’sclient); Phila. (Pa.) Bar Ass’n, Prof. Guid-ance Comm. Op. 88-34 (1988) (it is per-missible under Pennsylvania’s Rules for alawyer to serve as an expert witness for aparty while at the same time serving asanexpert witness for the party’s opponentin another unrelated suit).

D.C. Rule 1.9 states that “a lawyerwho has formerly represented a client ina matter shall not thereafter represent

another person in the same or a substan-tially related matter in which that per-son’s interests are materially adverse tothe interests of the former client unlessthe former client consents after consulta-tion.” Id. As we have already discussed, aclient-lawyer relationship will not existby virtue of the Inquirer’s serving as anexpert witness. Therefore, Rule 1.9 is nottriggered by this Inquiry.2

B. Clarifying the Lawyer/Expert’s Role

The law firm that hires a lawyer as anexpert witness should take care to avoidconfusion in the mind of its client as tothe different role a lawyer plays as anexpert witness. In order to avoid any mis-understanding about whether a client-lawyer relationship is created, the lawfirm should make the expert’s role clearat the outset of the engagement—forexample, through a written engagementletter defining the relationship, includingits scope and limitations, and the respon-sibilities of the expert witness. It is alsothe responsibility of the law firm that hasengaged the expert witness to assure thatits client is fully informed as to the natureof the expert’s role, see D.C. Rule 1.4,especially because any communicationsbetween the client and lawyer expert arelikely to be discoverable.3

In actual practice, the distinctionbetween the role of a lawyer acting as anexpert witness and a lawyer acting in arepresentational capacity can becomeblurred. The simplest situation, which wehave already discussed above, is when

the lawyer is hired as an expert witnessand the lawyer expert forms no attorney-client relationship with either the hiringlaw firm or the law firm’s client.

A more complicated situation can arisewhen a lawyer serving as co-counsel in thecase becomes an expert witness. Underthis scenario, the Rules of ProfessionalConduct clearly apply, and the clientneeds to provide informed consent to thelawyer’s changing roles. For example, if alawyer in the case becomes an expert wit-ness, the client needs to understand thatwhatever confidences and secrets mayhave been revealed to the lawyer may besubject to discovery now that the lawyerhas become a witness. D.C. Rule 1.6(e)(1)requires a client’s informed consent beforeany such confidences or secretes may beused or revealed.

A third scenario—where a lawyer origi-nally hired as an expert witness is asked tobecome a consultant or co-counsel on a dif-ferent aspect of the case—raises some addi-tional complications. Where an expertwitness morphs into a co-counsel role, theexpert witness must exercise special care toassure that the law firm and the client arefully informed and expressly consent to thelawyer’s continuing to serve as an expertwitness with respect to some issues in thecase. See D.C. Rule 1.2(c) (stating that a“lawyer may limit the objectives of the rep-resentation if the client consents after con-sultation.”) The lawyer serving as aconsultant or co-counsel is clearly bound bythe D.C. Rules of Professional Conductrelating to conflicts of interest and imputeddisqualification with respect to such service.

C. Additional Considerations

Even though the lawyer’s role as anexpert witness does not form a client-lawyer relationship with the party onwhose behalf she is to be called, thelawyer who serves as an expert witness isstill subject to the D.C. Rules of Profes-sional Conduct that govern lawyers gen-erally. For example, were the expertwitness to testify falsely, discipline underD.C. Rule 8.4 would be warranted. Seegenerally ABA Formal Op. 336 (1974);ABA Formal Op. 97-407.

Moreover, D.C. Rule 1.7(b)(4) mayimpose certain limitations upon thelawyer and her law firm as a result of herserving as an expert witness. For exam-ple, if she were asked to represent a clientin a matter adverse to the party for whomshe currently is serving as an expert, herresponsibilities to that party, as well as herown financial, business, or personal inter-ests might preclude the representation

May 2007 THE DISTRICT OF COLUMBIA BAR 289

2We note that, even if the Inquirer’s serving as

an expert witness on behalf of a particular partyconstituted a “representation” of that party suffi-cient to trigger the obligations of D.C. Rule 1.9, nei-ther she nor her new law firm would be disqualifiedunder the facts as presented here. The Inquirer neverpersonally represented the defendant bank whileworking at her prior law firms, and her new firm hasnever represented the defendant bank. Because thedefendant bank is not a client “about whom the[Inquirer] has in fact acquired information protectedby Rule 1.6 that is material to the matter,” there isno conflict of interest that would be imputed to thenew law firm. See D.C. Rule 1.10(b).

3In 1993, Fed. R. Civ. P. 26 was amended to

make information “considered” by an expert wit-ness discoverable (previously, it was a narrower“reliance” standard). The comments to this amend-ment state that its disclosure requirements wereintended to overcome privilege claims, and everyfederal court to decide the issue has so held. SeeFidelity Nat’l Title Ins. Co. v. Intercountry Nat’lTitle Ins. Co., 412 F.3d 745 (7th Cir. 2005); In rePioneer Hi-Bred Int’l, Inc., 238 F.3d 1370 (Fed.Cir. 2001). Therefore, the traditional protectionafforded by the opinion work product and attorney-client privileges has largely given way to a policyfavoring mandatory disclosure of information pro-vided to expert witnesses.

altogether.4 And if she were asked to rep-resent a client after the conclusion of herservice as an expert witness, she might bebound by a confidentiality agreementwith the party for whom she testified thatcould preclude her from zealously repre-senting the new client. See D.C. Rule1.7(c)(2) (eff. Feb. 1, 2007) (even with theclient’s informed consent, a lawyer mayonly represent a client if she “reasonablybelieves that [she] will be able to providecompetent and diligent representation toeach affected client”).

Approved: December 19, 2006Published: February 2007

Opinion 338

Whether A Law Firm May Retain theName of a Partner Who BecomesBoth “Of Counsel” to that Law Firmand a Partner in a Different LawFirm Also Bearing His Name

A lawyer may have an “of counsel”relationship with one firm and be a part-ner in a different firm, so long as the law-yer’s “of counsel” association with thefirst firm is regular and continuing and thelawyer is generally available personally torender legal services to that firm’s clients;and the two firms are treated as one forconflicts of interest purposes. When a for-mer partner continues to render legal ser-vices to the firm’s clients, that firm mayretain the former partner’s name in thefirm name, even though the former part-ner also practices in a new firm with aname that also includes his name.

Applicable Rulesl Rule 1.10 (Imputed Disqualification:

General Rule)l Rule 7.1 (Communications Concern-

ing a Lawyer’s Services)l Rule 7.5 (Firm Names and Letterheads)

Inquiry

A partner1 of a firm bearing his name(“X”) is withdrawing from the partner-

ship and becoming “of counsel.” He isthe only lawyer in the firm practicing inthe area in which he specializes. Xintends to form a new firm in which hewill be a partner, and that new firm willalso include his name. This new firm willspecialize principally in the area in whichX specializes. The parties have agreedthat each firm will redirect to the otherany misdirected telephone calls, corre-spondence, or other communications andthat the firms will have a unified conflictof interest policy.

Discussion

This inquiry raises the following ques-tions: (1) whether X may be “of counsel”in one firm and a partner in another; and(2) whether the law firm may continue toinclude X’s name in the firm name afterhe withdraws as a partner and continuesto practice with the firm in an “of coun-sel” relationship and whether, at the sametime, X may have his name included inthat of the new law firm that he will formand in which he also will practice law.

A. Practicing in More Than One Firm

D.C. Bar Legal Ethics Opinion 247(1994) recognizes that a lawyer may havean “of counsel” relationship with a firmwith respect to specific matters, while atthe same time maintaining a separatepractice with other lawyers in sharedoffice space. Nevertheless, whether a for-mer partner of a firm may be “of counsel”in one firm and a partner in another hasnot been specifically addressed in theDistrict of Columbia. Nor is there anyauthority in this jurisdiction as to whethera lawyer may be a partner in more thanone law firm.

The prevailing view among the variousjurisdictions that have considered theseissues is that a lawyer is not prohibitedfrom being a partner in more than onefirm if the firms are treated as one forimputation of conflicts.2 The American

Bar Association recognized that lawyersmay simultaneously work for more thanone law firm when it considered the ethi-cal issues associated with the use of tem-porary lawyers by firms.3 Later, in ABAFormal Opinion 357 (1990), the ABAconcluded that a lawyer could have a reg-ular “of counsel” relationship with morethan two firms and that “the lawyer isassociated with each firm with which thelawyer is of counsel.”4 For purposes ofattribution under Model Rule 1.10(a), theABA concluded that all disqualificationsof each firm will be attributed to the “ofcounsel” lawyer. In essence, the lawyer’s“of counsel” relationship with both firmseffectively makes the two firms a singlefirm for conflict of interest purposes.

Likewise, D.C. Rule 1.10(a) providesthat, “[w]hile lawyers are associated in afirm, none of them shall knowingly repre-sent a client when any one of them prac-ticing alone would be prohibited fromdoing so by Rules 1.7 or 1.9 . . . .5 In addi-tion, our Opinion 247 concludes that an“of counsel” designation makes thatlawyer “associated with the firm” for pur-poses of our Rule 1.10(a), and that a dis-qualification of a lawyer of the firm forwhich he is “of counsel” disqualifies the“of counsel” lawyer who maintained aseparate practice even though he had hadno involvement in the prior representation.

We conclude, based on the aboveanalysis, that a lawyer may practice inmore than one firm—specifically, that Xmay be “of counsel” in one firm and apartner in another. Because X will be“associated with” each firm for purposesof imputation under D.C. Rule 1.10(a),any disqualification of a lawyer in eitherfirm will be imputed to all lawyers inboth firms, unless excepted by Rule1.10(a)(1) or (2).6 The firms, however,must be aware that to comply with the

290 THE DISTRICT OF COLUMBIA BAR May 2007

apply to a shareholder in a law firm organized as aprofessional corporation or professional limited lia-bility company, or a member of an associationauthorized to practice law. The term “firm” refersto any of the aforementioned entities as well as asole proprietorship. See D.C. Rule 1.0 (c).

2See Philadelphia Bar Ass’n Ethics Op. 2001-5

(2001); Md. State Bar Ass’n Comm. On Ethics Op.88-45; Pennsylvania Bar Ass’n Ethics Op. 88-176(undated); New Jersey Sup. Ct. Advisory Comm.On Prof. Ethics, Op. 637 (1990). The SupremeCourt of Ohio Board of Commissioners on Griev-ances and Discipline disapproved lawyers beingpartners in more than one firm, see Opinion 1999-7 (1999), but in Opinion 2004-11 (2004), it con-cluded that an Ohio lawyer may practice law in

Ohio and be of counsel to another firm in anotherstate; or an out-of-state lawyer, not licensed inOhio, may become of counsel to an Ohio lawyer orlaw firm.

3See ABA Comm. on Ethics and Prof’l Respon-

sibility, Formal Op. 88-356 (1988).

4ABA Comm. on Ethics and Prof’l Responsi-

bility, Formal Op. 90-357 (1990).

5Rule 1.10(a), effective 2/1/07. The prior ver-

sion of this rule is identical to the rule quotedabove, except that the prior version contained ref-erences to D.C. Rules 1.8(b) and 2.2 which havebeen deleted. These deletions do not affect the sub-stantive analysis of this opinion.

6This, of course, is not an issue here because

the parties have agreed to treat both firms as onefirm for purposes of conflicts of interest.

4If the conflict arises only under Rule 1.7(b)(4),

then the revised Rules would not necessarily imputethat disqualification to her entire firm. See D.C.Rule 1.10(a)(1) (eff. Feb. 1, 2007). Just because alawyer serving as an expert might have a financial,business, property or personal interest in a particu-lar party does not always mean that her entire firmwould thereby be precluded from representing aclient adverse to that party.

1While the term “partner” is used throughout

this opinion, the same analysis and conclusions

requirements of D.C. Rule 1.6, a firmmay need to obtain a client or potentialclient’s permission to disclose, withrespect to any new matter, sufficientinformation to the other firm so that bothfirms may check potential conflicts.7

B. Using the Lawyer’s Name in MoreThan One Firm Name

The second question presented by thisinquiry is in two parts: (i) whether thefirm from which X is withdrawing as apartner may continue to use X’s name inthe firm name, and (ii) whether the firmthat X is forming also may use his name inthe firm name. In D.C. Bar Legal EthicsOpinion No. 277 (1997), we concludedthat a firm may retain the name of a for-mer partner who was severing her rela-tionship with the firm, except where theformer partner is practicing law else-where. We based our conclusions on D.C.Rules 7.5(a) and 7.1. Rule 7.5(a) provides:

A lawyer shall not use a firm name, let-terhead, or other professional designationthat violates Rule 7.1. A trade name maybe used by a lawyer in private practice ifit does not imply a connection with agovernment agency or with a public orcharitable legal services organization andis not otherwise in violation of Rule 7.1.

Rule 7.1 states:

A lawyer shall not make a false or mis-leading communication about thelawyer or the lawyer’s services. A com-munication is false or misleading if it:(1) Contains a material misrepresenta-tion of fact or law, or omits a fact neces-sary to make the statement considered asa whole not materially misleading; or(2) Contains an assertion about thelawyer or the lawyer’s services that can-not be substantiated.

In Opinion No. 277, we noted thatethics opinions in the District of Colum-bia and elsewhere have long recognizedthat it is permissible for law firms to usetrade names that include the names ofdeceased or retired partners. That Opin-ion also referenced ABA Formal Opinion90-357 in which the ABA concluded thatit would not be misleading to “use aretired partner’s name in the firm name,while the same partner is of counsel,where the firm name is long-establishedand well-recognized.”8

The inquirer in Opinion No. 277 was afounding partner of a law firm bearing hername. She wanted to have her nameremoved from the firm’s name after shewithdraws and wanted to know whetherthe Rules of Professional Conduct wouldrequire the law firm to remove her namefrom the firm name once she departs. Inher inquiry, she indicated that she did notknow whether she would continue topractice after her withdrawal. We con-cluded that a law firm may retain in itsname the name of a former partner, exceptwhere the former partner is practicing lawelsewhere or where the firm is prohibitedby law from retaining the name. Webelieved that if the former partner werepracticing elsewhere, “the possible identi-fying value of the firm name as a tradename yields to the greater possibility thatthe public will be misled by retention ofthe departed lawyer’s name in the firmname.” Opinion No. 277 noted that itwould be misleading to include in a firmname the name of a lawyer who hasceased practicing with the firm but is, infact, practicing elsewhere, presumablybecause it would imply that the lawyerwho is practicing elsewhere had a contin-uing relationship with the firm fromwhich the lawyer has withdrawn.

This inquiry demands a different con-clusion than suggested by the proviso inOpinion No. 277—that a withdrawinglawyer’s name may be retained in the firmname, unless the lawyer practices else-where. First, the facts here are distin-guishable from those in that Opinion.Here, unlike the lawyer in that opinion, Xwill continue to practice with the firm as“of counsel,” while at the same time prac-ticing at the second firm. Second, ourrules do not prohibit the use of thelawyer’s name in the firm names underthese the circumstances. More important-ly, the District of Columbia Court ofAppeals recently adopted new languagein the commentary to D.C. Rule 7.5 thatmakes clear that Opinion No. 277 wasfocused on the following concern: that itis “misleading to continue to use the nameof a lawyer formerly associated with thefirm who currently is practicing else-where.”9 This prohibition clearly does notapply here because the former partner willnot be “formerly associated” with thefirm. Rather, the lawyer will continue tobe associated with the firm.

In D.C. Bar Legal Ethics Opinion 332(2005), we said that a lawyer may con-

duct his or her business under any tradename that does not constitute a false ormisleading communication under D.C.Rule 7.1 about the lawyer’s services.10

Here, the question is whether including aformer partner’s name in the old firmname, as well as in the new firm’s namewill mislead the public. We conclude thatif the lawyer has a regular and continuingassociation with both firms and will begenerally available personally to renderlegal services at each firm that bears hisname, using his name in the names ofboth firms is consistent with D.C. Rule7.5(a). If, instead, he were to practicewith only one of the firms, including hisname in both could mislead the public.Under these circumstances, however,while using X’s name in both firm namesmay be unusual, it would not be mislead-ing, so long as he maintains a regular andcontinuing association with both firmsand is generally available personally torender services at each firm. We caution,however, that X must take special care toensure that each client to whom he ren-ders legal services understands whichfirm will be delivering legal services andresponsible for the client’s legal matter.

Dissent

We three undersigned non-lawyermembers of the Legal Ethics Committeehereby register our dissent to Part B ofD.C. Bar Legal Ethics Opinion No. 338.

Rule 7.1(a) states that “[a] communi-cation is false or misleading if it: . . . (2)Contains an assertion about the lawyer orthe lawyer’s services that cannot be sub-stantiated.” According to the Inquiry, anattorney is leaving a firm where his nameis in the firm name and setting up a sec-ond law practice where he will also be anamed partner. It is contended by theinquirer that he will remain “of counsel”to the first firm and therefore, it wouldnot be misleading to allow his name tocontinue to be used in the firm name,although he will become, in essence, aformer partner and current “of counsel”attorney.

As the definitions and actual practicesrelated to lawyers in “of counsel” roles arequite broad, we believe it is likely thatallowing the inquirer’s name to be contin-ued as part of the name of the firm he hasessentially left is, at best, confusing and, atworst, misleading to potential clients. Wefind that simply designating “of counsel”

7Under D.C. Rule 1.6, client consent would be

required only if the information is a client confi-dence or secret.

8See note 4 supra.

9D.C. Rule 7.5, Comment [1] (effective

2/1/07); see D.C. Ethics Opinion 277 (1997)(Emphasis added).

10Opinion 332 addressed the question whether

a solo practitioner may use the word “firm” in thefirm name.

May 2007 THE DISTRICT OF COLUMBIA BAR 291

on the letterhead, business cards, internetadvertising, and the like, would be insuffi-cient notice to prospective clients that thelawyer is practicing elsewhere in his ownpartnership or firm. (Partnership is a com-monly understood term.)

As the majority acknowledges, Opin-ion No. 277 (1997) recognized that it wasnot improper for a firm to continue to usethe name of retired or deceased membersin the firm name. That we understand tobe a longstanding practice and is accept-able because it identifies an entity thathas become known to the public and car-ries a certain cachet. We believe that is anacceptable practice because it is notdesigned to fool the public but rather rec-ognizes the distinguished service ofsuperannuated or dead partners.

Opinion No. 277 quotes ABA FormalOpinion No. 357 (1990), which recog-nized that if a partner in a law firm isretiring to become “of counsel,” thelawyer’s name may be retained in the lawfirm’s name. According to the majority,we concluded in Opinion No. 277 “that alaw firm may retain in its name the nameof a former partner, except where the for-mer partner is practicing law elsewhereor where the firm is prohibited by lawfrom retaining the name.” The majorityfurther recognized in Opinion 277 that, ifthe former partner were practicing else-where, “the possible identifying value ofthe firm name as a trade name yields tothe greater possibility that the public willbe misled by retention of the departedlawyer’s name in the firm name.” Evendisclosing a dual association/relationshipin writing to the client at the time ofretention would not timely alert theprospective client to ask about the param-eters of the lawyer’s “of counsel” rela-tionship at the firms. It is, in our view, toolittle, too late. The client has alreadywalked in the door under a false impres-sion that is not cured by disclosure in aretention letter.

On this basis alone, we dissent.Joseph Brent, PhDSteven Ebbin, PhDDonald Zauderer, PhD

Approved: October 2006Published: February 2007

Opinion 339

Threat of Criminal Referral In CivilDebt Collection Matter

• Lawyers violate D.C. Rule 8.4(g)when they threaten criminal charges forthe sole purpose of securing an advantagein a civil matter. In the context of a debtcollection action, the mere citation of orreference to a criminal statute during thecourse of the action does not constitute aper se violation of this Rule. A furtherreference to the potential for a criminalreferral if the debt is knowingly paid witha check drawn on insufficient funds doesnot violate our Rules unless phrased in amanner that is likely to mislead or con-fuse the recipient.

Applicable Rules• Rule 4.1 (Truthfulness in Statements

to Others)• Rule 4.3 (Dealing with Unrepresented

Person)• Rule 8.4 (Misconduct)

Inquiry

The Committee has received an inquiryon a matter relating to the obligation of anattorney under D.C. Rule 8.4(g). Inquireris a practitioner who engages in commer-cial collection work on behalf of clients.We are advised that situations often arisewhere the alleged debtor responds to ademand for payment by writing a checkon an account with insufficient funds.

Under District of Columbia law, if thedrafter of a check drawn on insufficientfunds (a “bounced check”) fails to curethe default within 5 days of having beennotified of the insufficiency, that failureconstitutes prima facie evidence of acriminal intent to defraud and of knowl-edge that the account on which the checkwas drawn had insufficient funds. SeeD.C. Code § 22-1510. In effect, oncedebtors receive notice that a check hasbounced, if they do not fund the checkpromptly they are at substantial risk ofcriminal charges and, because of theeffect of the District’s rules relating toproof, of conviction.

We are asked whether a standard formcommercial collection demand letter mayexplicitly refer to the D.C. Code provi-sions that criminalize the writing of acheck drawn on insufficient funds and therelated provisions regarding notice, cure,and the presumption of intent. If it may,we are further asked whether the demandletter may advise the recipient that, in the

event a bounced check is not funded, theinquirer may refer the matter to prosecu-tion authorities for their review.

Discussion

A. Basic Principles

Rule 8.4(g) of the D.C. Rules of Profes-sional Conduct makes it professional mis-conduct for a lawyer to “seek or threatento seek criminal charges . . . solely toobtain an advantage in a civil matter.”

Notably, this prohibition does not forma part of the Model Rules adopted by theAmerican Bar Association. It was long apart of the Model Code of ProfessionalResponsibility (see DR 7-105(A)), but itwas omitted from the newer ModelRules. The differing explanations for thatomission from the Model Rules (and con-versely, for inclusion of the provision inthe District’s Rules) point to the twomajor themes that recur in interpretationof the provision.

Some say that the prohibition in Rule8.4(g) was omitted from the Model Rulesbecause it was overbroad and prohibitedlegitimate negotiating tactics. See Com-mittee on Legal Ethics v. Printz, 416S.E.2d 720, 722-23 (1992) (relying on 1G. Hazard & W. Hodes, Law of Lawyer-ing § 4:4:102 (2d ed. 1990)). On thisreading, there are situations in which thereference to related criminal charges isconsidered an appropriate tactic. E.g.Alaska Ethics Op. 97-2 (1997) (allowingexplicit threat of criminal referral); Mich.Ethics Op. RI-78 (1991) (because Rule8.4(g) had been omitted, no specific ethi-cal rule prohibits a lawyer from calling tothe attention of an opposing party thepossible applicability of a penal statute ormaking reference to specific criminalsanctions or from warning of the possi-bility of criminal prosecution).

Others, however, argue that the omis-sion of Rule 8.4(g) from the Model Ruleswas simply because other provisions ofthe rules already prohibited the makingof extortionate, fraudulent, or otherwiseabusive threats. See ABA Formal Op. 92-363 (1992); Fla. Ethics Op. 89-3 (1989).On this reading, Rule 8.4(g)’s prohibitionaddresses conduct that is, in nearly allcircumstances, improper under otherapplicable Rules or laws.1

292 THE DISTRICT OF COLUMBIA BAR October 2007

1As ABA Formal Op. 94-383 makes clear, the

use of a threat of a criminal prosecution may alsoviolate Rule 8.4(b) to the extent that the conduct isextortionate under the criminal laws of a jurisdic-tion. Most notably in the District “A person com-mits the offense of blackmail if, with intent toobtain property of another or to cause another to do

The principal guidance we have as tothe purpose behind the decision of ourown Court of Appeals to adopt the Ruleis the explanatory language of the Dis-trict of Columbia Bar Jordan Committeewhen it first forwarded proposed Rule8.4 to the Court of Appeals. There theCommittee explained that “the conductprohibited by paragraph (g) . . . is tanta-mount to common law blackmail [and is]serious enough, and its occurrence fre-quent enough, that a rule clearly forbid-ding that conduct [is] needed.” See D.C.Bar Legal Ethics Op. No. 220 n.1 (quot-ing Jordan Committee).2

One of our prior opinions providessome additional indication of the scope ofthe rule. In Opinion 220, we consideredthe circumstances under which a threat tofile a disciplinary action against an oppos-ing attorney (conduct also prohibited byRule 8.4(g)) would violate the Rule.3There we identified two salient factorsthat guided the Committee’s analysis.

First, we noted that in situations wherean explicit reference to the charges wasmade “[t]he only question under Rule8.4(g) is whether the charges werethreatened or filed ‘solely to obtain anadvantage in a civil matter.’” Id. (empha-sis in Op. 220) (footnote omitted). Thus,we stressed that the text of the Rulemakes the operative question whethercivil advantage is the only purpose moti-vating the threat. This, of course, wouldtend towards a narrowing construction ofthe prohibition.

In other jurisdictions, such as Con-necticut, where the same prohibitionexists, substantial weight also has beengiven to the use of the phrase “solely.”Thus, the Connecticut equivalent of Rule8.4(g) (Rule 3.4(7) in its numbering sys-tem) has not been read as a blanket pro-hibition on all mention of criminal law.Rather, as Connecticut courts have held,see Somers v. Statewide GrievanceComm., 245 Conn. 277, 292 (1998), thekey to interpreting the Rule lies in the useof the word “solely” in the phrase, “sole-ly to obtain an advantage in a civilaction.” Somers makes it clear that thereis no per se prohibition against simulta-neously pursuing a criminal complaintand a civil action against the same partyunless the attorney’s sole reason for filinga criminal complaint is to seek an advan-tage in the civil action.

Somers also pointed out that the courtwill investigate the attorney’s motive andintention in filing the criminal complaintas part of its examination as to whethergaining an advantage in the civil actionwas the attorney’s “sole” reason. See alsoConn. Ethics Op. 99-50 (1999) (attorneymay civilly seek restitution on an allegeddebt while a criminal matter is pendingso long as the complainant does not con-dition an agreement to drop the prosecu-tion on the settlement of the allegeddebt). While this inquiry may protect alawyer’s appropriate acts, it should beemphasized that courts interpreting Rule8.4(g) seldom mention this single motivelimitation, and reliance on a multiplemotive defense is risky. See, e.g., Peopleex rel. Gallagher v. Hertz, 608 P.2d 335(Colo. 1979) (implicitly rejecting a mul-tiple motive defense).

This leads directly to the second aspectof our Opinion 220. Pointing out that thefocus on motive precluded a categoricalrule, we noted that the “determination offor what purpose or purposes the . . .charges at issue were threatened is a fac-tual question” and thus one that is typi-cally beyond the scope of theCommittee’s capacity to adjudicate. Id.

We agree that each inquiry is fact spe-cific. Thus, it appears as a general rulethat if the attorney has at least one otherbona fide reason to counsel or threaten acriminal prosecution while a civil actionis pending or intended, he or she mayenjoy the advantage in a civil actionwithout violating the rule. Typically,however, the existence of this “othermotive” will be a fact-driven inquiry;notwithstanding the analysis that follows,a cautious practitioner will not place toogreat a reliance on his or her ability to

convince an observer ex post of the exis-tence of an ex ante justification.4

B. Analysis

Relying on the forgoing, we might beinclined to offer no firm opinion on thepending inquiry—reasoning that themotive of the inquirer is a fact-specificquestion as to which we lack adequateinformation. That course, however,would fail to give Rule 8.4(g) any greateffect since the specter of a Bar Counselinquiry, while daunting, is sufficientlyrare as to not be a likely vehicle for thedevelopment of a common law of accept-able Rule 8.4(g) practice. Moreover, weconsider it significantly more valuablefor practitioners in this jurisdiction tohave the benefit of our guidance than tobe left with the uncertainty of a case-by-case development of the prohibition.

To be sure, some questions cannot beanswered in an advisory opinion such asthis, because motivations may well beobscured. But, we have concluded that theinquirer’s question is sufficiently clear andwell-defined that we can offer some guid-ance while also advancing certain generalprinciples that may apply to other matters.5

To provide the context for our discussion,and because we have said that context iscritical, we address in this opinion an ideal-ized collection letter of the following form:

Clause 1: Creditor, my client, allegesthat you, Debtor, owe him a debt in theamount of $X.

Clause 2: On his behalf I demand pay-ment.

Clause 3: You may settle this demandby writing a check in the amount of $X.

Clause 4: In the District of Columbia, itis a crime to intentionally pay with a “badcheck”-that is, one you know will bounce.If, after paying with the check, you are

October 2007 THE DISTRICT OF COLUMBIA BAR 293

or refrain from doing any act, that person threatens* * * [t]o accuses any person of a crime.” D.C.Code § 22-3252. While the collection letter we con-sider here is well short of this standard, attorneysshould be mindful of the strictures of Rule 8.4(b)and District law. They should also refrain from anyeffort to exert improper influence over the criminalprocess or any suggestion of the capacity to exertsuch influence.

2Other jurisdictions couch the analysis in simi-

lar fashion: In jurisdictions where Rule 8.4(g) or itsequivalent was completely omitted, it has been heldthat criminal charges may be threatened when thelawyer has a good faith belief that they are war-ranted by the facts. See Utah Ethics Op. 03-04(2003). Conversely, in jurisdictions where Rule8.4(g) or its equivalent exists, the limitations onattorney conduct have been read more stringently.E.g. Conn. Ethics Op. 00-24 (2000) (forbiddingprosecutor from conditioning dismissal of criminalcharges on dismissal of civil counter-complaint).

3We also addressed Rule 8.4(g) tangentially in

Opinion 263. There we concluded that seeking toinitiate a criminal contempt proceeding for viola-tion of a Civil Protective Order was not, under Dis-trict law, seeking to initiate a criminal charge. As aconsequence, the attorney’s threat to seek criminalcontempt fell outside the ambit of Rule 8.4(g)’sprohibition.

4We note, as well, that provisions of the D.C.

Code place limits on the manner and means bywhich a debt may be collected. See e.g. D.C. Code§ 28-3814 (c)(5) (prohibiting “threat that nonpay-ment of an alleged claim will result in the arrest ofany person”). It goes without saying that the prac-tice of an attorney collecting a debt within the Dis-trict must conform to District law. The questionhere is whether the Rules of Professional Conductimpose obligations beyond those imposed by gen-erally applicable statutes.

5The inquirer also asked about limitations on

his ability to instruct his client to proceed inde-pendently in a certain course of action whenever asituation to which his instructions might apply aris-es. Because a lawyer may not advise another to actin a manner that contravenes these Rules any morethan he may act himself, our answer to the questionof what a lawyer may do independently also con-trols what he may advise a client to do.

told that you don’t have enough money inthe bank to cover it, you will have 5 daysto deposit sufficient funds. If you fail todo so, that can be used as evidence thatyou intended to pay with a bad check.

Clause 5: If you attempt to settle thisdebt with a check drawn on insufficientfunds, I may refer this matter to thepolice for investigation and prosecution.

Clearly, the first three clauses of thisidealized letter are nothing more than atypical, permissible demand letter. Ouropinion focuses on whether the fourthand fifth clauses may also be included.And as to each clause we ask two distinctquestions: Is it a threat? And, if so, is it athreat made solely for the purpose ofgaining advantage in a civil matter.

1. Citation to or Quotation of Applica-ble Law: We begin with the fourth clause,in which the writer cites to, or quotes theD.C. Code provisions that relate to bouncedchecks. We believe that citation and/or quo-tation of the law, without any characteriza-tion of it, is permissible because it is notreasonably construed as a per se threat.

To be sure, we recognize that the cita-tion of the criminal provisions of law isintended to have the collateral effect ofachieving payment of the alleged out-standing debt through a check drawn onsufficient funds. We recognize as well thatthe inquirer’s desire to call attention to thecriminal law is, as we have been told, theresult of past experience and an attempt toavoid similar problems in the future.

But having a collateral effect is not, inour view, equivalent to making a “threat”in order to achieve that effect. There areany number of situations in which alawyer might reasonably cite to applica-ble law, and we would be reluctant toapply a per se rule prohibiting the citationof law. It would be odd, indeed, if alawyer could not cite a potential sanctionor reference a criminal provision in anyagreement or discussion with a thirdparty. Citation of underlying fraud law inthis context is, in our view, no more athreat than is the routine situation in a dis-covery deposition where an adversarylawyer advises a deponent of the potentialpenalties for perjury. We, therefore, areunwilling to assume that the mere citationor quotation of a criminal law, withoutmore, constitutes a threat of prosecution.6

Our conclusion that the mere citationof law is not threat is, of course, subjectto other limitations contained in ourRules. Under Rule 4.1, a lawyer may notmake a misleading statement of fact orlaw to a third party. And, under Rule 4.3,a lawyer may not provide advice to anunrepresented party. As a general matter,we think that the simple citation of anapplicable criminal rule will violate nei-ther prohibition inasmuch as it will, ifaccurate, not be misleading; furthermore,without any recommendation as to appro-priate action, the citation cannot be con-strued as the provision of “advice.” Theremay, however, be situations in which alawyer’s conduct violates these Rules—as, for example, if a selective quotationomits a relevant portion of the law. Thus,while the context of any citation to thelaw will always need to be examined, inour view the simple reference to a poten-tially applicable criminal law does notper se fall afoul of D.C. Rule 8.4(g).

2. Potential Referral to Prosecutor:We next turn to the question presented bythe fifth clause of our notional letter:whether inquirer may go further than cit-ing the applicable law and inform therecipient of the letter that, in addition to,or in lieu of, a suit to collect the allegeddebt, the inquirer may bring the matter ofany bounced check that is not promptlyfunded to the attention of the prosecutingauthorities who may then independentlychoose to prosecute any violation.

To begin with, we think it beyond dis-pute that such a statement is a “threat”under any meaningful construction ofthat term. To be sure, the statement ofone’s legal options is also a statement offact. But by contrast with a simple cita-tion of law, the statement that one mayrefer a matter to the prosecuting authori-ties constitutes an explicit suggestion thatthe inquirer may (or perhaps will) take aparticular action—moving the demandletter beyond a citation of law to a threatto take steps to see the law implemented.

We are left then with the question ofwhether this threat is solely to gainadvantage in a civil matter. And here, therather confused nature of the “threat”involved creates uncertainties in theanalysis.

For this is not a threat directly relatingto the underlying claim of a debt. Theinquirer does not wish to draft a collec-tion letter that says “if you do not pay thedebt I may refer the matter to the police.”As well he should not, for we would havelittle trouble in concluding that such athreat tied directly to the alleged debtwould contravene our Rules. Here, how-

ever, the threat is directed at a future actto be done by the creditor—and one thatis not certain to occur. Thus, the threat isa contingent one based upon a yet-to-occur set of facts: “if you pay the debtand if you pay it with a bad check, andthen do not fund it after I provide noticethat the check is unfunded, then I mayrefer the matter to the police.”

Thus, under one construction, the“threat” (of referral if payment is made byway of an unfunded check) is not connect-ed to the civil action, which has as itsobjective the collection of the debt and is,at least upon initiation, agnostic as to themeans by which the debt is paid – check,money order, cash or, conceivably, in-kindservices. And a relatively innocuous refer-ence of the form that might be used (e.g.“failure to pay with a check drawn on suf-ficient funds may result in referral of thismatter for prosecution”) is quite distantfrom the threats of “blackmail” or extor-tion that motivated the Jordan Committeeto include Rule 8.4(g) in our Rules.7

This construction is buttressed by therequirements of the District Code thatmake notice and an opportunity to cureeffectively a prerequisite for a successfulcriminal prosecution for paying a debtwith a bad check. Thus, the situation heremight be analogized to that in other juris-dictions where ethics committees haveopined that letters referring to the crimi-nal sanctions imposed for stopping pay-ment on a check were not sent solely forthe purpose of gaining an advantage in acivil matter. See, e.g., Decato’s Case, 379A.2d 825 (N.H. 1977); Florida Ethics Op.85-3; Georgia Ethics Op. 26 (1980); UtahEthics Op. 71 (1979). Each of these opin-ions rested on the fact that state lawimposes a requirement of such notifica-tion before bringing a civil action—inother words, the premise is that the Rulesof Professional Conduct cannot prohibitthat which underlying local law requiresfor the zealous representation of a client.

But another more troubling constructionis also possible. Unlike the situations justreferred to, D.C. law does not mandate thedrafting of a demand letter as a pre-requi-

294 THE DISTRICT OF COLUMBIA BAR October 2007

6Even were the citation of law construed as a

“threat” we also think that the mere citation of apotentially applicable law in a communication can-not per se be deemed “solely” for the purpose ofachieving an advantage in the pending civil matter.The existence of alternate purposes for the citationof law seems sufficiently likely to make a per serule unreasonable.

7Indeed, this threat is not quintessential “black-

mail”—a situation in which one is threatened con-cerning an act that has already occurred. Ordinarily,one is not subject to blackmail (which, the JordanCommittee reminds us is at the core of the concernsunderlying Rule 8.4(g)) for acts that have not yetbeen completed. This is why Rule 8.4(g) would notapply to any threat made by a lawyer to a witness dur-ing a deposition (e.g., that if you don’t testify honest-ly, you can be prosecuted) and also counsels againsta blanket per se extension of Rule 8.4(g) to the cir-cumstances under consideration in this opinion.

site to a claim; rather it provides that thefailure to respond to such a letter has evi-dentiary consequences. Moreover, ineach of the instances referenced above,the attorney was responding to an act bythe debtor that had already occurred—thestopping of payment on a check alreadydrawn. By contrast, here the inquirer iswriting in respect of an event that has yetto occur—the payment of the allegeddebt by means of an unfunded check.

Given these factors, the proposed fifthclause of the demand letter does raiseconcerns. In light of the contingent natureof the threat, and especially when oneconsiders that the recipient of a demandletter of the form suggested is likely to beunschooled in the law, the context inwhich the letter is sent and the identity ofthe recipient might give rise to questionsconcerning the senders’ true motive. Alawyer who knowingly blurs this distinc-tion in a demand letter may be in violationof Rules 4.1, 8.4(c) and 8.4(g) as well asDistrict statutes relating to wrongful debtcollection tactics or blackmail.8

And we cannot, of course, assume thatall claims of debt are incontestable—tothe contrary, the debtor may well havevalid defenses to the alleged debt. Thepossibility exists that, confusing thethreat of referral for a bad payment withthe threat of referral for a non-payment,the debtor may be misleadingly inducedto forgo these legitimate grounds for con-testing the debt.

The extent to which confusion is like-ly is, of course, an empirical question asto which the Committee has no data andregarding which the members of theCommittee have divergent views. Someconsider such confusion highly likely;others much less so.

In the end, however, it is clear to amajority of the Committee that Rule8.4(g) is not the appropriate vehicle foraddressing these empirical concerns. TheRule speaks to a prohibition on threatsmade “solely” for advantage. Here, theinquirer has articulated a clear and plausi-ble alternate motivation—his experiencethat many creditors pay with unfunded

checks and his desire to avoid the costsand inconvenience associated with thatoccurrence. We credit such experience.And even if we were disinclined to do so,for purposes of an advisory opinion suchas this, we are bound to accept such anarticulated representation at face value.See Rule E-5, Rules of the D.C. Bar LegalEthics Committee (“The Committeeassumes the facts, as stated in the inquiry,are accurate, and ordinarily it will notlook beyond those stated.”). Given thiseminently plausible alternate motivationwe are convinced that Rule 8.4(g) is notviolated by this type of threat of referral ifthe lawyer writing the demand letter isacting with a similar motivation.

Of course it goes without saying that alawyer may not use this alternate motiva-tion as a pretext for including threateninglanguage in a demand letter merely tointimidate unsophisticated recipients.That would violate the Rule. Whetherany individual lawyer has the requisitemotivation in any particular case is, ofcourse, a “factual question which thisCommittee is not equipped to decide.”D.C. Ethics Op. 220.

Moreover, caution must be exercisedwhen drafting a form collection letter thatcontains an analog to the fifth clause. Aswe have already noted, Rule 4.1 prohibitsthe making of misleading statements—and we can certainly imagine a letterbeing drafted that, either by omission ofrelevant qualifying information or byinclusion of material that goes beyond asimple statement of intent would become,in context, misleading. Thus, the carefulpractitioner should not read this opinionas an authorization for collection tech-niques that amount to “high-pressure tac-tics” or confusing conduct.

Indeed, though it is not required by ourrules, the potential for confusion may beameliorated to a degree by a disclaimer,explicitly advising the recipient of theletter of his right to contest the underly-ing debt and noting that the criminal lawsrefer to the means of payment, notwhether a payment is, in fact, due. Inessence, the inclusion of the fifth clauseis assuredly made less misleading ifanother clause clarifies that “you maycontest the debt. The potential for crimi-nal referral arises only if you choose notto contest the debt and then pay the debtwith a bad check.”

In the end, however, even without sucha disclaimer, we are of the view that anappropriately couched reference to thepotential for a criminal referral of thematter that is based upon an attorney’sprior experience or other non-pretextual

motivation and that is contained in a formletter is not, per se a threat made “solely”for advantage in a civil action. We cannotsay that such references are, in allinstances, prohibited by Rule 8.4(g).

Conclusion

In sum, the mere citation of a criminalstatute or a reference to a criminal sanc-tion that does not mischaracterize thesanction is, in our view, permissibleunder the Rules. A statement that theattorney may refer the matter for prose-cution if payment is made through anunfunded check is not prohibited, thougha cautious practitioner will consideraccompanying any such reference with asuitable disclaimer.

Inquiry Number: 05-12-22Published: May 2007

Opinion 340

Contacts with Government OfficialsIn Litigated Matters

• Under D.C. Rule 4.2(d), a lawyer rep-resenting a client in a dispute being litigat-ed against a government agency maycontact a government official within thatagency without the prior consent of thegovernment’s counsel to discuss substan-tive legal issues, so long as the lawyeridentifies himself and indicates that he isrepresenting a party adverse to the govern-ment. In addition, the lawyer may alsocontact officials at other governmentagencies who have the authority to affectthe government’s position in the litigationconcerning matters, provided that thelawyer makes the same disclosures as stat-ed above. The lawyer cannot, however,contact government officials either withinthe agency involved in the litigation orelsewhere concerning routine discoverymatters, scheduling issues or the like,absent the consent of government counsel.

Applicable Rules• Rule 4.2(d) (Communicating with

Government Officials)

Inquiry

We have received an inquiry from anattorney representing an agency of theUnited States Government concerning theinterpretation of D.C. Rule 4.2 governingcontacts with represented persons. Theattorney is employed by a governmentagency that frequently finds itself in con-

October 2007 THE DISTRICT OF COLUMBIA BAR 295

8. To demonstrate the point, consider the absurdhypothetical in which the fifth clause of our notion-al letter instead reads: “By the way, jaywalking is amisdemeanor and if I observe you jaywalking I willrefer you to the prosecutor.” Such a threat, so clear-ly distinct from the underlying effort to collect adebt, would not be for the purpose of gaining anadvantage in the civil action. The issue that ariseswith the proposed action we consider here is that,though distinct from the underlying debt collection,the action for payment with a bounced check is suf-ficiently closely related that we cannot disregardthe real possibility of confusion.

tract disputes with private entities thatprovide services to the agency. In thesedisputes, according to the inquirer, thegovernment contracting officer has theauthority to resolve or settle the disputeon behalf of the government. The inquirerrequests guidance on when and underwhat circumstances attorneys for theadverse party may contact the govern-ment contracting officer concerning thedispute, and whether they may do sowithout the consent of the attorneys rep-resenting the government agency. Specif-ically, the inquirer asks whether a privateattorney representing the agency’s adver-sary can contact the government contract-ing officer concerning legal argumentscontained in the government’s court fil-ings absent consent of the governmentattorney in the matter.

The inquirer also asks whether con-tacts, again without the consent of thegovernment attorney, can take placebetween attorneys for private entities in adispute with the government and govern-ment officials who are not employed bythe agency involved but who neverthelesscould, by virtue of their positions, affectthe government’s position in the dispute.

Background

D.C. Rule 4.2 generally prohibits com-munications between a lawyer and per-sons represented by counsel about thesubject of the representation absent theconsent of the represented person’s coun-sel. “Person” for the purposes of the Ruleincludes organizations and specificallycovers those individuals within an organ-ization who have “the authority to bind[the] organization” as to the particularmatter at issue. D.C. Rule 4.2(c). As weexplained in Opinion 80, the governmentofficials “who are deemed to be govern-ment ‘parties’ with whom communica-tions under the rule are restricted arequite limited, including only those per-sons who have the power to commit orbind the government with respect to thematter in question.” D.C. Ethics Op. 80(1979) (interpreting DR-7-104(A)(1)).

The purpose of Rule 4.2 as it relatesboth to represented individuals andorganizations is to “protect[ ] representedpersons unschooled in the law fromdirect communications from counsel foran adverse person.” D.C. Rule 4.2, Com-ment [5]; see also D.C. Ethics Op. 331(2005) (recognizing the “basic purpose”of Rule 4.2 “is to prevent a client, who onthe one hand is presumed to be relativelyunsophisticated legally but who on theother hand has ultimate substantive con-

trol over the matter, from making unin-formed or otherwise irrational decisionsas a result of undue pressure from oppos-ing counsel”) (internal quotations omit-ted) The concept embodied in Rule 4.2 isnot a novel one and was reflected in theCode of Professional Responsibility. SeeDR 7-104 (prohibiting communicationby a lawyer with “a party he knows to berepresented by a lawyer in [the] matter”).In this jurisdiction, the general prohibi-tion stated in Rule 4.2 is subject to anumber of exceptions. For example,Comment [5] allows a lawyer to contactin-house counsel of an organization with-out the consent of outside counsel repre-senting the organization. See also D.C.Ethics Op. 331.

This inquiry involves the exceptioncontained in D.C. Rule 4.2(d) that per-mits contacts without the consent ofcounsel for the government between alawyer and “government officials whohave the authority to redress grievancesof the lawyer’s client,” provided that thelawyer discloses to the government offi-cial “both the lawyer’s identity and thefact that the lawyer represents a party thatis adverse” to the government.1 Theexception stated in Rule 4.2(d) is notfound in the current or prior versions ofthe ABA Model Rules. However, Com-ment [5] to Model Rule 4.2 provides that“[c]ommunications authorized by law[and thus exempt from the restrictions ofthe Rule] may include communicationsby a lawyer on behalf of a client who isexercising a constitutional or other legalright to communicate with the govern-ment.” See also ABA Formal Op. 97-408

(authorizing communication with gov-ernment officials represented by counsel“provided that the sole purpose of thelawyer’s communication is to address apolicy issue”).

The adoption of the exception con-cerning government officials containedin D.C. Rule 4.2(d) has been the subjectof extensive debate and discussion, muchof it decades ago. In 1975, we received aninquiry concerning whether or not Rule4.2’s predecessor, DR 7-104(A)(1),applied to contacts with government offi-cials. At that time, DR 7-104(A)(1) sim-ply prohibited communications by alawyer with a represented party, and,unlike the current Rule, did not containany language excepting governmentagencies or officials.2 We felt that thematter was sufficiently important that wepublished a tentative draft opinion andsolicited comments on that opinion. SeeD.C. Ethics Op. 80 n.1. After some fouryears of consideration and a number ofpublic comments, we released Opinion80, which concluded that the then-exist-ing rule prohibited contact, absent con-sent, with “those . . . who have the powerto commit or bind the government withrespect to the subject matter in question.”Id. We recommended, however, that therule be amended to eliminate the prohibi-tion on contacting government officialsabsent consent.

Our recommendation was ultimatelyendorsed and adopted by the JordanCommittee, which made recommenda-tions concerning the District of Colum-bia’s adoption of the ABA Model Rules.In its 1986 report to the Court of Appeals,the Jordan Committee recommended thatRule 4.2 be restricted to “non-govern-mental parties” and discussed the reasonsfor its recommendation at length:

Government officials, especially thosewho have significant decision makingauthority, are almost always capable ofresisting any arguments or other sugges-tions that are not proper and genuinelypersuasive. Moreover, any governmentofficial who is in a high enough positionto make binding decisions can surely berelied upon to exercise... individualjudgment as to whether to engage insuch direct communications at all. . . .

296 THE DISTRICT OF COLUMBIA BAR October 2007

1Rule 4.2(d) states as follows:

This rule does not prohibit communicationby a lawyer with government officials whohave the authority to redress the grievancesof the lawyer’s client, whether or not thosegrievances or the lawyer’s communicationsrelate to matters that are the subject of therepresentation, provided that in the event ofsuch communications the disclosures speci-fied in (b) are made to the government offi-cial to whom the communication is made.

Rule 4.2(b) which is referenced in Rule 4.2(d)provides:

During the course of representing a client, alawyer may communicate about the subjectof the representation with a nonpartyemployee of an organization without obtain-ing the consent of that organization’s lawyer.If the organization is an adverse party, how-ever, prior to communicating with any suchnonparty employee, a lawyer must discloseto such employee both the lawyer’s identityand the fact that the lawyer represents a partythat is adverse to the employee’s employer.

2DR 7-104(A)(1) provided that during the

course of representing a client, a lawyer shall not,absent consent:

[c]ommunicate or cause another to commu-nicate on the subject of the representationwith a party he knows to be represented by alawyer in that matter.

Proposed Rules of Professional Conductand Related Comments 187 (Nov. 19,1986) (“Jordan Committee Report”). TheJordan Committee Report noted, amongother reasons, that government agencieshad “the power to protect themselves byadopting rules and regulations concern-ing communications between privateattorneys and government officials.” Id.at 188.

In the public comment process that fol-lowed the release of the Jordan Commit-tee Report, the exclusion of governmentalparties from D.C. Rule 4.2 was again thesubject of considerable comment. SeeAnalysis of Comments Submitted to theDistrict of Columbia Court of Appeals inResponse to the Court’s Order of Septem-ber 1, 1988. As a result of the commentprocess, the Court of Appeals modifiedthe Jordan Committee’s original recom-mendation. The language restricting D.C.Rule 4.2 to “non-governmental parties”was deleted, and D.C. Rule 4.2(d), in itscurrent form, was substituted along withwhat are now Comments [10] and [11].Neither Rule 4.2(d) nor the relevant Com-ments have been amended since theiradoption by the Court of Appeals in 1990.

We have addressed D.C. Rule 4.2(d)only once since 1990. In Opinion 280,the inquirer was an attorney who hadrepresented a chiropractor before a Dis-trict of Columbia licensing board in aproceeding that had concluded with aconsent order. The inquirer felt that theboard staff had acted improperly in theproceedings leading to the consent orderand further understood that members ofthe board itself were unhappy with thestaff “imposing its will on the board withrespect to a number of matters.” D.C.Ethics Op. 280 (1998). The inquirerwished to discuss with an individualboard member both the consent orderreached in his client’s matter and thegeneral dissatisfaction with the staff’sconduct. After reviewing Opinion 80 anddiscussing the subsequent treatment ofthe issue in the Jordan CommitteeReport, we concluded that the proposedcontacts did not violate D.C. Rule 4.2. Insupport of our conclusion, we citedComment [7] (now renumbered as Com-ment [11] but not otherwise amended),which explains that lawyers may bypassgovernment counsel “with respect togenuine grievances.”

Discussion

The first question posed by the inquir-er is whether it is permissible to commu-nicate about substantive legal issues with

a government contracting officer in amatter being litigated absent the consentof the government lawyer. The inquirersuggests a distinction between discussingbasic policy positions of the government,concerning which non-consensual con-tacts are concededly authorized by D.C.Rule 4.2(d), and discussing substantivelegal issues, concerning which prior con-sent should arguably be obtained. We donot find support for this distinction inD.C. Rule 4.2(d).

Comment [11] provides the relevantguidance:

Paragraph (d) does not permit a lawyerto bypass counsel representing the gov-ernment on every issue that may arise inthe course of disputes with the govern-ment. It is intended to provide lawyersaccess to decision makers in govern-ment with respect to genuine grievances,such as to present the view that the gov-ernment’s basic policy position withrespect to a dispute is faulty, or that gov-ernment personnel are conducting them-selves improperly with respect toaspects of the dispute. It is not intendedto provide direct access on routine dis-putes such as ordinary discovery dis-putes, extensions of time or otherscheduling matters, or similar routineaspects of the resolution of disputes.

Contacts concerning substantive legalissues appear to fall within the rubric of“genuine grievances” rather than “rou-tine disputes” relating to run-of-the-milldiscovery and scheduling issues. Thereference to a “basic policy position” inComment [11] is preceded by the lan-guage “such as” and is thus simply illus-trative of the type of “genuinegrievances” that do not require prior con-sent. A “genuine grievance” can and fre-quently does pertain to substantive legalarguments advanced by the government.One of the virtues of Comment [11] isthat the line that it draws between thosecontacts that require consent and thosethat do not is relatively easy to discern.Even if we were empowered to re-drawthis line, we would hesitate before advo-cating an approach which distinguishesbetween “basic policy positions” and“substantive legal arguments.” One rea-son that a “basic policy position” can be“faulty”, and therefore a permissiblesubject of non-consensual contacts withgovernment officials under Comment[11], is that it is based on flawed “sub-stantive legal arguments.” The inquirerconcedes that D.C. Rule 4.2 authorizes alawyer to argue to a government officialthat the government’s position is faulty,but would not permit the lawyer to make

any reference to the legal argumentsmade by either side. This seems to usunworkable in practice. In addition,making a distinction between “basic pol-icy position[s]” and “substantive legalarguments” has no support in the lan-guage of D.C. Rule 4.2 and its accompa-nying Comments.

The second question asked by theinquirer concerns the extent to which alawyer for a private party (without theconsent of the government lawyer) maycontact officials in other agencies ororganizations who might affect the gov-ernment’s position in the on-going liti-gation as part of an effort to further thecause of the lawyer’s client. In someinstances, the inquirer posits that thegovernment official contacted might noteven be aware of the specific dispute inwhich the government is engaged or theparticular issues that are being raised inthe dispute. If the official contacted hasthe “authority to redress the grievancesof the lawyer’s client” then the contactis within the scope of D.C. Rule 4.2(d),so long as the lawyer makes the appro-priate disclosures required under D.C.Rule 4.2(b). If, on the other hand, theofficial contacted does not have thepower to bind the agency in the matter,then the contact remains permissibleabsent consent because the governmentofficial is not a person represented in thematter. See Rule 4.2(c) (for organiza-tions, the term “‘party’ or ‘person’”includes only those individuals whohave “the authority to bind an organiza-tion as to the representation to which thecommunication relates.”); see also D.C.Ethics Op. 80 (limiting government offi-cials covered by the rule to “only thosepersons who have the power to commitor bind the government to the matter inquestion”).3 We note that even thoughwe conclude that a lawyer may general-ly initiate contact with a governmentofficial, an official is not obligated toengage in the communication and mayask the lawyer to communicate withgovernment counsel rather than directlywith the official.

Inquiry Number: 06-08-10Published: June 2007

October 2007 THE DISTRICT OF COLUMBIA BAR 297

3. If the government official contacted is anattorney who serves as an “in-house counsel,” thencontact absent consent would be permissible underComment [5] to Rule 4.2.

Opinion 341

Review and Use of Metadata in Elec-tronic Documents

• A receiving lawyer is prohibitedfrom reviewing metadata sent by anadversary only where he has actualknowledge that the metadata was inad-vertently sent. In such instances, thereceiving lawyer should not review themetadata before consulting with thesending lawyer to determine whether themetadata includes work product of thesending lawyer or confidences or secretsof the sending lawyer’s client.

Applicable Rules• Rule 1.6 (Confidentiality of Infor-

mation)• Rule 3.4 (Fairness to Opposing

Party and Counsel)• Rule 4.4 (Respect For Rights of

Third Persons)• Rule 8.4 (Misconduct)

Inquiry

We have received numerous inquiriesconcerning a lawyer’s obligations regard-ing metadata that is imbedded in elec-tronic documents received from opposingcounsel. Metadata is electronically storedinformation, typically not visible fromthe face of the document as printed out oras initially shown on the computerscreen, but which is imbedded in the soft-ware and retrievable by various means.Often described as “data about data,”metadata provides information regardingthe creation and modification of a docu-ment, and sometimes includes commentsby persons participating in the creation ormodification of the document.1 To theuninitiated, metadata is hidden and per-haps unknown, but to competent comput-

er-users, the existence of metadata is wellknown and may be a simple “click” ortwo away. The information that is embed-ded is often mundane and of little or nointerest, but in some instances it mayreveal significant information.

In assessing the ethical obligations ofboth the sending and receiving lawyerwith respect to metadata, we find it use-ful to distinguish between electronicdocuments provided in discovery or pur-suant to a subpoena from those electron-ic documents voluntarily provided byopposing counsel. Although the Floridaand Alabama Bars have recognized asimilar distinction, see Florida Bar Op.06-2; Alabama State Bar, Office of Gen.Counsel Op. No. R0-2007-02, the dis-tinction has not been universally recog-nized in other ethics opinions addressingmetadata. See ABA Formal Op. 06-442;Maryland Bar Ass’n Ethics Docket No.2007-09.

Analysis

A. Electronic Documents Provided Out-side of Discovery

1. The Sending Lawyer

Lawyers sending electronic documentsoutside of the context of responding todiscovery or subpoenas have an obliga-tion under Rule 1.6 to take reasonablesteps to maintain the confidentiality ofdocuments in their possession. Thisincludes taking care to avoid providingelectronic documents that inadvertentlycontain accessible information that iseither a confidence or a secret and toemploy reasonably available technicalmeans to remove such metadata beforesending the document. See N.Y. State BarAss’n Committee Op. 782. Accordingly,lawyers must either acquire sufficientunderstanding of the software that theyuse or ensure that their office employssafeguards to minimize the risk of inad-vertent disclosures.2

2. The Receiving Lawyer

More often than not, the exchange ofmetadata between lawyers is eithermutually helpful or otherwise harmless.

Lawyers routinely exchange contracts,stipulations, and other documents thatinclude “track changes” or other soft-ware features which highlight suggestedmodifications. Similarly, spreadsheetsinclude necessary metadata such as for-mulas for the columns and rows, therebyproviding a useful understanding of thecalculations made.

But when a receiving lawyer has actu-al knowledge that the sender inadver-tently included metadata in an electronicdocument, we believe that the principlesstated in Opinion Nos. 256 and 318relating to inadvertent production ofprivileged material should be used indetermining the receiving lawyer’s obli-gations. In Opinion No. 256, we statedthat, where a lawyer knows that a privi-leged document was inadvertently sent,it is a dishonest act under D.C. Rule8.4(c) for the lawyer to review and use itwithout consulting with the sender. Wereached a similar conclusion in OpinionNo. 318, regarding the receipt of docu-ments from third parties. However, wenoted in Opinion 318 that, where theprivileged nature of the document is notapparent on its face, there is no obliga-tion to refrain from reviewing it, and theduty of diligent representation underD.C. Rule 1.3 may trump confidentialityconcerns.

Consistent with Opinion No. 256, weagree generally with the New York andAlabama Bars to the extent that theyhave found Rule 8.4(c) to be implicatedwhen a receiving lawyer wrongfully“mines” an opponents’ metadata. SeeN.Y. State Bar Ass’n Committee Op. 749(concluding that lawyers have an obliga-tion not to exploit an inadvertent orunauthorized transmission of client con-fidences or secrets and that “use of suchinformation . . . [is] conduct ‘involvingdishonesty, fraud, deceit or misrepresen-tation’”); and Alabama State Bar, Officeof Gen. Counsel Op. No. R0-2007-02(finding that “[t]he unauthorized miningof metadata by an attorney to uncoverconfidential information would be a vio-lation of... Rule 8.4”).

In our view, however, Rule 8.4 isimplicated only when the receivinglawyer has actual prior knowledge thatthe metadata was inadvertently provid-ed. Given the ubiquitous exchange ofelectronic documents and the sendinglawyers’ obligation to avoid inadvertentproductions of metadata, we believe thatmere uncertainty by the receivinglawyer as to the inadvertence of thesender does not trigger an ethical obli-gation by the receiving lawyer to refrain

298 THE DISTRICT OF COLUMBIA BAR October 2007

1The Federal Judicial Center recently issued a

publication on electronic discovery that defined theterm “metadata” as

[i]nformation about a particular data set ordocument which describes how, when, andby whom the data set or document was col-lected, created, accessed, or modified; itssize; and how it is formatted. Some metada-ta, such as file dates and sizes, can easily beseen by users; other metadata can be hiddenfrom users but are still available to the oper-ating system or the program used to processthe data set or document.

Barbara J. Rothstein, Ronald J. Hedges, & Eliza-beth C. Wiggins, Managing Discovery of Electron-ic Information: A Pocket Guide for Judges 24-25(Federal Judicial Center 2007), www.fjc.gov/public/pdf.nsf/lookup/eldscpkt. pdf/$file/eldscpkt.pdf.

2For information on methods for handling meta-

data, see The Sedona Conference Working GroupSeries, The Sedona Guidelines: Best PracticeGuidelines & Commentary for Managing Informa-tion & Records in the Electronic Age (Sept. 2005),www.thesedonaconference.org/dltForm?did=TSG9_05.pdf.

from reviewing the metadata. This stan-dard is consistent with our conclusion inOpinion No. 256.3

Where there is such actual prior knowl-edge by the receiving lawyer as to theinadvertence of the sender, then notwith-standing the negligence or even ethicallapse of the sending lawyer, the receivinglawyer’s duty of honesty requires that herefrain from reviewing the metadata untilhe has consulted with the sending lawyerto determine whether the metadataincludes privileged or confidential infor-mation.4 If the sending lawyer advisesthat such protected information is includ-ed in the metadata, then the receivinglawyer should comply with the instruc-tions of the sender. The receiving lawyermay, however, reserve his right to chal-lenge the claim of privilege and obtain anadjudication, where appropriate.

A receiving lawyer may have suchactual prior knowledge if he is told by thesending lawyer of the inadvertencebefore the receiving lawyer reviews thedocument. Such actual knowledge mayalso exist where a receiving lawyerimmediately notices upon review of themetadata that it is clear that protectedinformation was unintentionally includ-ed. These situations will be fact-depend-ent, but can arise, for example, where themetadata includes a candid exchangebetween an adverse party and his lawyersuch that it is “readily apparent on itsface,” D.C. Ethics Op. 318, that it wasnot intended to be disclosed. As we stat-ed in Opinions 256 and 318, a prudentreceiving lawyer who is uncertainwhether the sender intended to includeparticular information should contact thesending lawyer to inquire.

We recognize that other ethics opin-ions take a different view and have con-cluded that neither Rule 8.4(c) nor anyother ethics rule prohibits the review ofmetadata. In Formal Opinion 06-442,the ABA noted that there is no ruleexpressly prohibiting such conduct. TheABA discussed Model Rule 4.4(b),which relates to the inadvertent produc-tion of documents, as “the most closelyapplicable rule,” but it declined to statethat it directly applied to metadata trans-mitted within an electronic document.The ABA nevertheless noted that underModel Rule 4.4(b), where it applies, areceiving lawyer has no obligationunder the ethics rules beyond notifyingthe sender.5

Notably, however, the version of Rule4.4(b) adopted by the D.C. Court ofAppeals, effective February 1, 2007, ismore expansive than the ABA version.Indeed, the D.C. Rule largely codifiedOpinion No. 256 regarding inadvertentproduction of privileged documents. SeeD.C. Rule 4.4, Comments [2] & [3]. D.C.Rule 4.4(b) provides:

A lawyer who receives a writing relat-ing to the representation of a client andknows, before examining the writing,that it has been inadvertently sent, shallnot examine the writing, but shall noti-fy the sending party and abide by theinstructions of the sending partyregarding the return or destruction ofthe writing.

Although the purpose of Rule 4.4(b) wasto address the inadvertent disclosure ofentire documents (whether electronic orpaper),6 we see no reason why it wouldnot also apply to an inadvertently trans-mitted portion of a writing that is other-wise intentionally sent.

B. Electronic Documents Provided inDiscovery or Pursuant to a Subpoena

When metadata is provided in discov-ery or pursuant to a subpoena, the rules ofprofessional conduct are not the onlyrules of which lawyers must be aware.Although such other rules lie outside ourjurisdiction, we note that the FederalRules of Civil Procedure now providesteps to identify and address issues relat-ed to electronic discovery. See F. R. Civ.P. 16(b), 26 (f), 33(d), 34(a) and 37(f)(effective Dec. 1, 2006). Under these newrules, parties are required to consult at theoutset of a case about the nature of perti-nent electronic documents in their pos-session and the manner in which they aremaintained. This should include specificdiscussions as to whether a receivingparty wants to obtain the metadata, and ifso, whether the sending party wishes toassert a claim of privilege as to some orall of the metadata.

Although decided prior to the imple-mentation of the amended federal rules,the case of Williams v. Sprint/UnitedMgt., 230 F.R.D. 640 (D. Kan. 2005),illustrates how metadata may be consid-ered probative evidence in litigation. InWilliams, plaintiff employees brought aclass action claiming age discriminationin connection with a reduction-in-force(“RIF”), and they sought and obtainedfrom the defendant electronic versions ofExcel spreadsheets that were created andused by the defendant to identify pools ofemployees subject to the RIF. The defen-dant “scrubbed” the metadata from thesespreadsheets before producing them, andplaintiffs objected. They moved to com-pel production of the metadata as origi-nally maintained. The court held thatbecause the metadata could be relevant indetermining whether defendants hadmanipulated the employee pools asalleged, defendants had to provide themetadata to plaintiffs.7

1. The Sending Lawyer in the Discov-ery/Subpoena Context

D.C. Rule 3.4(a) provides the relevantguidance for lawyers providing access to

October 2007 THE DISTRICT OF COLUMBIA BAR 299

3By stating that the standard for a violation is

“actual knowledge,” we do not condone a situationin which a lawyer employs a system to mine allincoming electronic documents in the hope ofuncovering a confidence or secret, the disclosure ofwhich was unintended by some hapless sender. TheRules of Professional Conduct are “rules of rea-son,” Scope [1], and a lawyer engaging in such apractice with such intent cannot escape accounta-bility solely because he lacks “actual knowledge”in an individual case. Moreover, as stated in Rule1.0(f), “[a] person’s knowledge may be inferredfrom circumstances.”

4In Opinion No. 256, we discussed the analo-

gous situation of a lawyer who finds a wallet in thestreet. Here, the more appropriate analogy may be toa lawyer who inadvertently leaves his briefcase inopposing counsel’s office following a meeting or adeposition. The one lawyer’s negligence in leavingthe briefcase does not relieve the other lawyer fromthe duty to refrain from going through that brief-case, at least when it is patently clear from the cir-cumstances that the lawyer was not invited to do so.

5In its Opinion No. 2007-09, the Maryland Bar

also concluded that Rule 8.4(c) is not implicated bya receiving lawyer’s accessing metadata. But theMaryland Bar relied on its version of Rule 4.4.which has not been amended to impose any obliga-tion on the lawyer who receives an inadvertentlyproduced document. The Maryland Bar stated thatits opinion was “heavily influenced by the differ-ence between the Maryland Rules of ProfessionalConduct and [ABA Model Rule 4.4].” D.C. Rule4.4(b), by contrast, imposes upon the receivinglawyer an obligation not only to contact the send-ing lawyer (as the Model Rule requires), but also toabide by the sending lawyer’s instructions regard-ing the return or destruction of the document.

6Under D.C. Rule 1.0(o), a “writing” is defined

as “a tangible or electronic record of a communica-tion or representation, including handwriting, type-writing, printing, photostating, photography, audioor video recording, and e-mail.”

7By citing Williams, we do not necessarily

mean to endorse its holding or to provide any guid-ance with respect to the rules of discovery. SeeSpeedway v. NASCAR, Inc., 2006 U.S. Dist. LEXIS92028 (E.D. Ky. Dec. 18, 2006) (criticizing the spe-cific holding in Williams). Rather, we cite Williamsmerely to illustrate that courts have required theproduction of metadata as probative evidence, andwe discuss below the implications of this conclu-sion for the responsibilities of lawyers under therules of professional conduct.

tangible evidence in discovery:

A lawyer shall not . . . Obstruct anotherparty’s access to evidence or alter,destroy, or conceal evidence, or counselor assist another person to do so, if thelawyer reasonably should know that theevidence is or may be the subject of dis-covery or subpoena in any pending orimminent proceeding. Unless prohibitedby law, a lawyer may receive physicalevidence of any kind from the client orfrom another person.

Because it is impermissible to alterelectronic documents that constitute tan-gible evidence, the removal of metadatamay, at least in some instances, be pro-hibited as well.8 In addition to issuesregarding discovery sanctions, the alter-ation or destruction of evidence can,under some circumstances, also constitutea crime. See D.C. Rule 3.4, Comment [4].

2. The Receiving Lawyer in the Dis-covery/Subpoena Context

In view of the obligations of a sendinglawyer in providing electronic documentsin response to a discovery request or sub-poena, a receiving lawyer is generallyjustified in assuming that metadata wasprovided intentionally. Moreover, when adocument is sought in discovery orthrough subpoena, the scope of what isprotected is narrowed from anything thatis a confidence or secret to that materialwhich falls within an evidentiary privi-lege. See D.C. Rule 1.6(e)(2)(A); Adamsv. Franklin, No. 05-CV-233, slip op. at 5(D.C. May 10, 2007) (“the lawyer’s ethi-cal duty to preserve a client’s confidencesand secrets is broader [than] the attorney-client privilege”).

In addition, when an electronic docu-ment constitutes tangible evidence, orpotential tangible evidence, the receivinglawyer has an obligation competently anddiligently to review, use, and preserve theevidence. See D.C. Rules 1.1, 1.3. Theelectronic document is similar to any

other tangible evidence that the lawyer isexpected to review in order to advanceher client’s interests. Where useful, forexample, the lawyer in such instancesmay consult with a computer expert todetermine the means by which the meta-data can be most fully revealed andreviewed, much as a lawyer does with afinger-print expert.9

Notwithstanding all this, even in thecontext of discovery or other judicialprocess, if a receiving lawyer has actualknowledge that metadata containing pro-tected information was inadvertently sentby the sending lawyer, the receivinglawyer, under Rule 8.4(c), should advisethe sending lawyer and determinewhether such protected information wasdisclosed inadvertently. See D.C. EthicsOp. 256 (“The line we have drawnbetween an ethical and an unethical use ofinadvertently disclosed information isbased on the receiving lawyer’s knowl-edge of the inadvertence of the disclo-sure.”). If the sender advises thatprotected information was unintentionallyprovided, then the receiving lawyershould follow the directives of the send-ing lawyer regarding the disposition ofthe electronic document. Under these cir-cumstances, however, the receivinglawyer is permitted to take protectivemeasures to ensure that potential evidenceis not destroyed and to preserve the rightto challenge the claim that the informa-tion is privileged or otherwise not subjectto discovery and obtain an adjudicationon that point. Of course, this is all subjectto applicable rules of procedure and courtorders that may otherwise govern.10

Conclusion

We conclude that when a receivinglawyer has actual knowledge that anadversary has inadvertently providedmetadata in an electronic document, thelawyer should not review the metadatawithout first consulting with the senderand abiding by the sender’s instructions.In all other circumstances, a receivinglawyer is free to review the metadatacontained within the electronic files pro-vided by an adversary.

(No Inquiry Number)Published: September 2007

Opinion 342

Participation in Internet-BasedLawyer Referral Services RequiringPayment of Fees

• Lawyers may participate in both not-for-profit and for-profit lawyer Internet-based referral services where the servicesrequire a flat fee for participation, a flat feefor transmitting the lawyer’s name to apotential client, and/or a flat fee for everyclient secured as a result of a referral.

Applicable Rules• Rule 5.4 (Professional Indepen-

dence of a Lawyer)• Rule 7.1 (Communications Regard-

ing a Lawyer’s Services)

InquiryWe have received a number of inquiries

concerning participation in, and the cre-ation of, Internet-based referral services.All inquires seek guidance on whether alawyer’s participation in a specific pro-gram would be permissible under theD.C. Rules of Professional Conduct.Specifically, we have been asked to pro-vide guidance with respect to the applica-bility of D.C. Rules 5.4 and 7.1 to lawyerparticipation in referral services under theterms common to the programs reviewed.

Most referral programs are run by StateBar Associations or other nonprofit organ-izations. There are, however, a substantialnumber of programs that are operated byfor-profit organizations, and these servicesvary in size, sophistication, legal specialty,and design. While most sites have numer-ous disclaimers that could be accessedfrom the home page, the cost of lawyerparticipation and the existence of feesrequired if a lawyer is selected through thereferral service are often not apparentwithout signing up for the service.

300 THE DISTRICT OF COLUMBIA BAR December 2007

8This is not to suggest that all metadata should

be treated alike. For example, a Joint Court-BarCommittee of the United States District Court for theDistrict of Maryland has issued a suggested protocolthat defines and distinguishes between differentkinds of metadata, only some of which are subject toroutine production. See Suggested Protocol for Dis-covery of Electronically Stored Information, In re:Electronically Stored Information, ¶11 (D. Md.),www.mdd.uscourts.gov/localrules/localrules.html.The purpose of the protocol is “to facilitate the just,speedy, and inexpensive conduct of discoveryinvolving [electronically stored information or‘ESI’] in civil cases, and to promote, whenever pos-sible, the resolution of disputes regarding the dis-covery of ESI without Court intervention.” Id. ¶1.

9In concluding that a lawyer may review meta-

data in documents produced in discovery (that is,unless and until the lawyer has actual knowledgethat the metadata contains protected information),we do not intend to suggest that a lawyer mustundertake such a review. Whether as a matter ofcourtesy, reciprocity, or efficiency,“a lawyer maydecline to retain or use documents that the lawyermight otherwise be entitled to use, although(depending on the significance of the documents)this might be a matter on which consultation withthe client may be necessary.” D.C. Ethics Op. 256,n.7 (citing D.C. Rules 1.2(a) and 1.4(b)); see alsoD.C. Ethics Op. 318, n.5.

10When in litigation, an attorney must comply

with the applicable rules of procedure of the courtin which the litigation resides. In this regard, forexample, Rule 26(b)(5)(B) of the Federal Rules ofCivil Procedure requires a lawyer who is informedby opposing counsel that an allegedly privilegeddocument was produced, to return, sequester ordestroy the document until the court adjudicates theclaim of privilege. See also D.C. Rule 3.4(c)(requiring a lawyer to comply with the rules of apresiding tribunal).

The common elements among theinquiries included the following: (1) theservices do not charge a fee to theprospective client or consumer; (2) theycharge, instead, a flat fee for lawyers toparticipate in the service; (3) they requirethat the fees charged by the lawyers toclients secured through the referral ser-vice not be higher than fees charged toclients who do not use the referral ser-vice; (4) they provide guidelines on thetype of information that participatinglawyers must provide; (5) they adopt spe-cific qualification requirements forlawyers to participate (e.g., certificates ofspecialties, malpractice insurance, mini-mum number of years of practice); (6)they include disclaimers to prospectiveclients that the lawyer is responsible forthe content of the description of thelawyer’s services; and (7) they providedisclaimers stating that the referral ser-vice does not provide legal advice or rec-ommend a particular lawyer. In addition,none of the referral services reviewedappear to solicit prospective clients by“in-person contact.”1 While the referralservices advertise in a variety of media,the consumer or the prospective clientmust initiate the contact with the referralservice to receive any referrals.

BackgroundRule 7.1 of the D.C. Rules of Profes-

sional Conduct governs all communica-tions regarding a lawyer’s services,including advertising. The Rule prohibitsa lawyer from making a false or mislead-ing communication about her servicesand imposes certain limits on in-personsolicitation.2

Prior to February 1, 2007, D.C. Rule7.1(b) permitted lawyers to use paidintermediaries to make in-person contactwith prospective clients, so long as thelawyer reasonably knew that such solici-tation was consistent with the intermedi-ary’s contractual or other legalobligations and the lawyer took reason-able steps to ensure that the potentialclient was informed about how much theintermediary was paid and the effect, ifany, of the payment on the lawyer’s totalfee.3 The current version of D.C. Rule7.1(b) no longer permits the use of paidintermediaries. “A lawyer shall not giveanything of value to a person (other thanthe lawyer’s partner or employee) for rec-ommending the lawyer’s servicesthrough in-person contact.” D.C. Rule7.1(b)(2). Comment [5] explicitly statesthat a “lawyer is no longer permitted toconduct in-person solicitation throughthe use of a paid intermediary.”

The District of Columbia Bar Rules ofProfessional Conduct Review Committeerecommended this change for two reasons:

First, lawyer advertising in now wide-spread, reaching diverse communities inthe District of Columbia, including non-English speakers and immigrants. Con-cerns that certain persons, without theintervention of a paid intermediary, wouldbe unable to locate a lawyer to hire, shouldno longer exist. Second, there is reason tobelieve that at least some paid intermedi-aries, who are effectively beyond thepower of the Bar to regulate, have usedharassing, abusive, or unseemly practicesin soliciting potential clients for lawyers.

District of Columbia Bar Rules of Pro-fessional Conduct Review Committee,Proposed Amendments to the District toColumbia Rules of Professional Con-duct: Final Report and Recommenda-tions (Clean Copy) 179 (June 21, 2005;revised Oct. 6, 2005).

While we have not previouslyaddressed an inquiry about Internet-based referral services that chargelawyers a fee for participating, we haveaddressed similar or analogous inquires.All of those inquiries have been resolved,at least in part, with references to the nowprohibited practice of using paid interme-diaries. See, e.g., D.C. Ethics Ops. 261(1995), 286 (1998), 302 (2000), & 307(2001). Thus, our conclusions reached inthese prior opinions must be read andreassessed in light of the recent amend-ments to D.C. Rule 7.1.

There are three principal differencesbetween the Model Rules (and those ofother jurisdictions) and D.C. Rule 7.1 thatare relevant to the inquiries. First, D.C.Rule 7.1 is more permissive than theModel Rule with respect to lawyer solici-tation. Model Rule 7.3 generally prohibitsa lawyer from engaging in any in-personsolicitation of potential clients (which theModel Rules define to include both livetelephone calls and “real-time electroniccontact”) unless the potential client iseither a lawyer or has a pre-existing rela-tionship with the contacting lawyer. Bycontrast, in the District of Columbia, Rule7.1 permits a lawyer to make such in-per-son solicitations so long as the lawyer’sclaims are not misleading, the solicitationdoes not involve the use of coercion,duress, or harassment, and the potentialclient has the capacity to make reasonedjudgments regarding the selection of alawyer. See D.C. Rule 7.1(b).4

December 2007 THE DISTRICT OF COLUMBIA BAR 301

1“In-person contact” or solicitation “include[s]

telephone contact but not electronic mail.” D.C.Rule 7.1, Comment [5].

2As amended, D.C. Rule 7.1 states in pertinent

part that:

(a) A lawyer shall not make a false or mis-leading communication about the lawyer orthe lawyer’s services. A communication isfalse or misleading if it:

(1) Contains a material misrepresentationof fact or law, or omits a fact necessary tomake the statement considered as a wholenot materially misleading; or(2) Contains an assertion about thelawyer or the lawyer’s services that can-not be substantiated.

(b) (1) A lawyer shall not seek by in-personcontact, employment (or employment of apartner or associate) by a nonlawyer who hasnot sought the lawyer’s advice regardingemployment of a lawyer, if:

(A) The solicitation involves use of astatement or claim that is false or mis-leading, within the meaning of para-graph (a);

(B) The solicitation involves the use ofcoercion, duress or harassment; or(C) The potential client is apparentlyin a physical or mental conditionwhich would make it unlikely that thepotential client could exercise reason-able, considered judgment as to theselection of a lawyer.

(2) A lawyer shall not give anything of valueto a person (other than the lawyer’s partneror employee) for recommending thelawyer’s services through in-person contact.

(c) A lawyer shall not knowingly assist anorganization that furnishes or pays for legalservices to others to promote the use of thelawyer’s services or those of the lawyer’spartner or associate, or any other lawyeraffiliated with the lawyer or the lawyer’sfirm, as a private practitioner, if the promo-tional activity involves the use of coercion,duress, compulsion, intimidation, threats, orvexatious or harassing conduct.

3The prior version of D.C. Rule 7.1 included

the following language:

(b) A lawyer shall not seek by in-person con-tact, or through an intermediary, employment(or employment of a partner or associate) bya nonlawyer who has not sought the lawyer’sadvice regarding employment of a lawyer, if:

. . . .(4) The solicitation involves use of anintermediary and the lawyer knows orcould reasonably ascertain that such con-duct violates the intermediary’s contrac-tual or other legal obligations; or(5) The solicitation involves the use of anintermediary and the lawyer has not takenall reasonable steps to ensure that thepotential client is informed of (a) the con-sideration, if any, paid or to be paid by thelawyer to the intermediary, and (b) theeffect, if any, of the payment to the inter-mediary on the total fee to be charged.

4Lawyers should be aware that substantive law

may limit certain solicitation practices in particularcircumstances. See, e.g., D.C. Code § 22-3225.14(limiting the ability of lawyers and other “practi-tioners,” whether directly or through a paid inter-mediary, to solicit clients during the 21-day periodfollowing a motor vehicle accident).

Second, the D.C. Rule 7.1 is lessrestrictive than other jurisdictions in reg-ulating advertising. The rule onlyrequires that advertising not contain mis-representations of fact or law or asser-tions that cannot be substantiated. SeeD.C. Rule 7.1(a). Comment [4] furtherstates that any restrictions beyond theselimited requirements impose barriers tothe flow of information about lawyers’services. Although Model Rule 7.2 issimilar in this regard, other jurisdictionsare much more restrictive. See, e.g., IowaRule of Professional Conduct 32:7.2Advertising.

Finally, D.C. Rule 7.1 differs from theModel Rule regarding participation inlawyer referral programs. Both rules nowprohibit a lawyer from paying a person torecommend her services (e.g., intermedi-aries), and both rules carve out an excep-tion for referral services. Model Rule 7.2,however, states that a lawyer may “paythe usual charges of . . . a not-for-profit orqualified lawyer referral service”(emphasis added). A “qualified lawyerreferral service” is defined as one that“has been approved by an appropriateregulatory authority.” Model Rule7.2(b)(2). Comment [6] to D.C. Rule 7.1,on the other hand, simply states that “alawyer may participate in lawyer referralprograms and pay the usual fees chargedby such programs.” Thus, the D.C. Rule,which was adapted from the Model Rule,specifically omitted wording that wouldlimit payment of fees only to not-for-profit referral services or to services thatare otherwise regulated by appropriateauthorities.5

DiscussionIn the District of Columbia, questions

regarding a lawyer’s participation in anInternet-based referral service are no dif-ferent than any other question aboutlawyer communications regarding legalservices. We have previously said that“we see nothing untoward in lawyerscommunicating about their servicesthrough web sites, provided that suchcommunications comply with our gener-al rules governing lawyer communica-tions with clients.” D.C. Ethics Op. 302.Such communications are governed byD.C. Rule 7.1.

As an initial matter, the rule requireslawyers to ensure that their listings withthe referral services, and any statementsmade by the referral services about thelawyers’ services, satisfy D.C. Rule7.1(a). Thus, the lawyers must ensure thatthe communications about their servicesprovided by the referral service are nei-ther false nor misleading and that anyaffirmative statements about their legalservices can be substantiated. See D.C.Ethics Op. 249 (1994). The referral pro-grams under review request informationsuch as the following: office locations;contact information; years of practice;certificates of specialty if the State Barrecognizes specializations; current areasof practice; certificate of malpracticeinsurance; and current bar memberships.Our rules expressly permit the public dis-semination of this type of information.6

The referral service must also conform tothe requirements of D.C. Rule 7.1(b)(2),which prohibits a lawyer from giving “any-thing of value to a person (other than thelawyer’s partner or employee) for recom-mending the lawyer’s services through in-person contact.” As previously discussed,this language was added to make clear thatuse of paid intermediaries in the District ofColumbia is now prohibited. Notwithstand-ing this change to the text of the rule, therelevant language in the Commentsremains unchanged, and it states that “alawyer may participate in lawyer referralprograms and pay the usual fees charged bysuch a programs.” D.C. Rule 7.1, Comment[6]. Thus, Rule 7.1(b)(2) was not intendedto curtail participation in fee charging refer-ral programs, but, rather, to stop lawyersfrom using paid intermediaries to make in-person solicitations. The key distinctionbetween referral programs and paid inter-mediaries is that referral programs do notgenerally engage in unsolicited in-personcontact with prospective clients.

Each of the referral programsdescribed by the inquirers requires thatthe prospective client initiate contactwith the referral service to receive anyinformation about a prospective lawyer.While the referral services advertisethrough websites and other media outlets,none of them initiates unsolicited in-per-

son communications with prospectiveclients. Instead, the inquirers alldescribed Internet-based services throughwhich prospective clients can electroni-cally request a referral. For some ser-vices, the prospective client can call thereferral service for technical assistance inusing the web site to request a referral.Others allow the prospective client toeither submit the request electronically,or call the service to receive referrals. Butnone of the services engage in any unso-licited contact with prospective clients.7

Each referral service also informs theprospective client that the service is sim-ply providing a list of available lawyersand is not recommending any particularlawyer. In many cases, the service pro-vides multiple random referrals for eachrequest. While the particular programsdescribed in the inquiries we received donot recommend any specific lawyerswhen they transmit the names to potentialclients, we do not believe that our con-clusions would change if these programswere to make specific recommendations.Such recommendations would, however,be subject to scrutiny under Rule 7.1(a).Specifically, we believe that a servicethat recommends a lawyer without offer-ing any explanation of the basis for therecommendation could be misleading,particularly if the service simply recom-mends any lawyer who pays a fee. How-ever, if the basis for the recommendationis clearly explained, such advertising isunlikely to run afoul of Rule 7.1(a).8

With respect to fees, the programsdescribed by the inquirers require of eachlawyer a flat fee to participate or to haveinformation listed with the service for aspecified period of time. Such fees arepermissible if they are “the usual feescharged by such programs.” D.C. Rule

302 THE DISTRICT OF COLUMBIA BAR December 2007

5Because the Internet crosses jurisdictional

boundaries, and because we rely on unique aspectsof the District of Columbia Rules, lawyers whoaccept referrals should exercise particular carewhen doing so from clients based in, or regardingmatters arising out of, other jurisdictions, becausethe rules of those jurisdictions may apply. See D.C.Rule 8.5(b), D.C. Ethics Op. 311 (2002).

6“This rule permits public dissemination of

information concerning a lawyer’s name or firmname, address, and telephone number; the kinds ofservices the lawyer will undertake; the basis onwhich the lawyer’s fees are determined, includingprices for specific services and payment and creditarrangements; a lawyer’s foreign language ability;names of references and, with their consent, namesof clients regularly represented; and other informa-tion that might invite the attention of those seekinglegal assistance.” D.C. Rule 7.1, Comment [3].

7Because most of these services allow referrals

to be made over the telephone, the communicationsarguably fall within the definition of “in-person”solicitation under the D.C. Rules. But we interpretthe prohibition in D.C. Rule 7.1(b)(2) against pay-ing a person for recommending the lawyer’s ser-vices through in-person contact not to extend tosituations in which a prospective client makes atelephone call to a referral service and affirmativelyrequests a name or names of lawyers. We do notbelieve that D.C. Rule 7.1(b)(2) was intended toprohibit a lawyer from paying to participate in areferral service in which the prospective client initi-ates the contact, expressly seeking lawyer referrals.

8The location of such an explanation is likely to

vary from web site to web site depending on thedesign. We have cautioned before that, “becauseweb pages allow multi-layered communications,questions may arise about whether a visitor to aweb page may be misled because relevant disclo-sures are hidden many clicks away from the mainpages.” D.C. Ethics Op. 302.

7.1, Comment [6]. What is “usual” willvary over time and among different ser-vices based on the costs of operatingthem. At a minimum, “usual” means thatthe fees fall within a range of feescharged by comparable services.

D.C. Rule 5.4 generally prohibitslawyers from “sharing” fees with non-lawyers. The purpose of this prohibition isto “protect the lawyer’s professional inde-pendence of judgment.” D.C. Rule 5.4,Comment [1]. Although some of the refer-ral programs make the payment of a feecontingent upon securing a client from thereferral, none of them makes the fee con-tingent on the outcome of the case or onthe amount of the legal fees. As weexplained in Opinion 286, “[a] non-con-tingent payment for the referral of legalbusiness, i.e., one that is paid regardless ofthe success or outcome of the representa-tion, is not a division of legal fees. Suchpayments are simply part of a lawyer’smarketing expenses, payable whether ornot they produce revenue for the lawyer.”9

Thus, we conclude that a flat fee for trans-mittals, or for each client secured, does notviolate either D.C. Rule 7.1 or 5.4.

In Opinion 307, we considered a refer-ral system operated by the federal gov-ernment. That referral program requiredthat a law firm bidding to participate on aschedule contract to provide legal ser-vices to a government agency pay onepercent of the fee income generated inorder to cover the costs of the referralprogram. We concluded that

the drafters of the D.C. Rules were notparticularly concerned about the man-ner in which non-profit lawyer referralservices structured their fee arrange-ments; their principal focus was on pre-venting non-lawyer intermediaries fromusing their power over lawyers who relyon them for business referrals to influ-ence those lawyers’ “professional inde-pendence of judgment.” D.C. Rule 5.4,Comment [1].

We went on to recognize that “the devel-opment of referral schemes that do notcompromise lawyers’ independence [is] apositive development, though we recog-nize that our Rules are less clear thanthey could be on this issue.” D.C. EthicsOp. 307. The recent amendments to D.C.

Rule 5.4 now expressly allow a lawyer toshare legal fees “with a nonprofit organi-zation that employed, retained, or recom-mended employment of the lawyer in thematter and that qualifies under Section501(c)(3) of the Internal Revenue Code.”D.C. Rule 5.4(a)(5).10

Thus, while there is no distinctionbetween not-for-profit and for-profitreferral services in D.C. Rule 7.1, D.C.Rule 5.4 does make a distinction betweennot-for-profit and for-profit programswith respect to fee sharing. But as long asthe lawyers participating in a for-profitInternet-based referral program pay a flatfee, or a flat fee per transmittal, ratherthan a portion of the fees earned from theclient, D.C. Rule 5.4 is not violated.

Finally, all of the inquiries we receivedmade clear that none of the participatinglawyers would have any financial interestin the referral service. Nor would anyparticipating lawyer have any employ-ment or contractual relationship with thereferral service provider even where theprovider was a large entity with otherbusiness interests. If such a relationshipwere to exist, it would likely prove prob-lematic under D.C. Rule 5.4(b).

In sum, the amended D.C. Rules pro-hibit a lawyer from conducting, “in-per-son solicitation through the use of a paidintermediary,” but allow a lawyer to “par-ticipate in lawyer referral programs andpay the usual fees charged by such pro-grams.” See D.C. Rule 7.1, Comments[5] and [6]. Thus, we conclude that par-ticipation in lawyer referral programs,like those described above, that conformto the D.C. Rules of Professional Con-duct in general, and to D.C. Rules 7.1 and5.4 in particular, is permitted.

Inquiry Nos. 06-01-24 and 06-08-11Published: November 2007

Opinion No. 343

Application of the “Substantial Rela-tionship” Test When Attorneys Partic-ipate in Only Discrete Aspects of aNew Matter

• A lawyer who has formerly repre-sented a client in a matter is prohibitedfrom representing another person in thesame or substantially related matter inwhich that person’s interests are material-

ly adverse to the interests of the formerclient, unless the former client givesinformed consent. Two matters are “sub-stantially related” to one another if thereis a substantial risk that confidential fac-tual information as would normally havebeen obtained in the prior representationis useful or relevant in advancing theclient’s position in the new matter. Sub-ject to certain conditions, a lawyer maylimit the scope of the new representationsuch that factual information normallyobtained in the prior matter would belegally irrelevant to the advancement ofthe current client’s position in the newmatter. Specifically, by agreeing only torepresent a client as to a discrete legalissue or with respect to a discrete stage inthe litigation, a lawyer may be able tolimit the scope of the representation suchthat the new matter is not substantiallyrelated to the prior matter. Restrictions onthe scope of the representation that effec-tively ensure that there is no substantialrisk that confidential factual informationas would normally have been obtained inthe prior representation would be usefulor relevant to advance the client’s posi-tion in the new matter may, under certaincircumstances, be sufficient to avoid aconflict of interest.

Applicable Rules• Rule 1.2 (Scope of Representation)• Rule 1.9 (Conflict of Interest: For-

mer Client)• Rule 1.10 (Imputed Disqualifica-

tion: General Rule)

Inquiry

We have received a number ofinquiries that present the general questionwhether lawyers may limit their partici-pation in a matter in such a way that thecurrent matter is not substantially relatedto a prior matter in which they represent-ed a former client whose interests areadverse to those of the current client. Inother words, even though the overall rep-resentation of the current client may besubstantially related to the prior represen-tation, we have been asked whetherlawyers may nonetheless limit their ownparticipation in the new representationsuch that the specific matter on whichthey are representing the current client isnot substantially related to the prior mat-ter in which they had represented the for-mer client.

In considering this important question,we find it useful to distinguish betweentwo ways in which a lawyer may be ableto limit her participation in a case: First, a

April 2008 THE DISTRICT OF COLUMBIA BAR 303

9Opinion 286, along with other opinions dis-

cussing payments of fees for referrals (see, e.g.,D.C. Ethics Op. 307), incorporated into its analysisof fee sharing an analysis of the District of Colum-bia’s unique rule permitting the use of intermedi-aries. While the rule no longer permits the use ofintermediaries, the reasoning of these opinions withrespect to fee sharing remains sound.

10The rule change only addressed nonprofit

organizations that qualify under section 501(c)(3);Opinion 307 continues to apply with respect to gov-ernment referral services.

client may want a lawyer to represent it asto a discrete legal issue as part of a largerlegal representation whose interests areadverse to the lawyer’s former client,where the specific legal issue is one that isentirely distinct from the matter in whichthe lawyer (or the lawyer’s law firm) hadpreviously represented a former client.For example, Lawyer is an expert inpatent law. Client hired Lawyer to adviseand represent Client in obtaining all of therights under a particular patent through anassignment from the original patent hold-er. Sometime later, Client approachesLawyer to represent it in a patent infringe-ment suit against Company. However,Lawyer’s law firm has previously repre-sented Company in a different patentinfringement case involving the sameunderlying technology. Lawyer informsClient that she cannot participate in thepatent infringement action against Com-pany but that she could represent Clienton the limited question whether Client’sown patent had been properly assigned toit. In other words, Lawyer would repre-sent Client only to the extent that Compa-ny asserts that Client lacks standing topursue the infringement claim on thegrounds that the patent had not been prop-erly assigned. Client would hire otherlawyers to prosecute its infringementclaims. Given that Lawyer’s participationwould be limited only to whether thepatent had been properly assigned toClient rather than to whether Companyhad infringed that patent, would such alimited representation be permissibleunder D.C. Rule 1.9 even without Com-pany’s informed consent? If so, what pre-cautions or conditions would Lawyerneed to take into account?

Second, a client may want to hire alawyer to represent it as to a discretestage in the litigation – one that presentsa pure question of law that would notinvolve the lawyer in any factual issues.For example, Lawyer has been asked torepresent Client who is interested in fil-ing a petition for certiorari with the Unit-ed States Supreme Court to challenge adecision of the court of appeals on thegrounds that the appellate court lackedjurisdiction over the particular claim.Lawyer and her firm did not representClient at trial, where Client had filed suitagainst Company. Some years earlier,other lawyers in Lawyer’s firm haddefended Company in litigation involv-ing some of the same facts as the currentlitigation. Lawyer proposes to limit thescope of her representation of Client topreparing a petition for certiorari, meritsbriefs, and oral argument in the Supreme

Court to raise a narrow question of appel-late jurisdiction. The scope of her repre-sentation would be limited to theSupreme Court proceedings; she wouldnot represent Client should the matter beremanded or, for that matter, should therebe any settlement discussions or otherproceedings relating to the underlying lit-igation. Other lawyers represented Clientin the lower-court proceedings and wouldremain involved with the case. Lawyerbelieves that the issues to be presented atthis stage of the proceedings are distinctmatters of federal law and that nothingthat Lawyer’s colleagues might havelearned in the prior litigation would berelevant or useful to the legal argumentspresented to the Supreme Court. Assum-ing Client is willing to consent to the cir-cumscribed scope of Lawyer’srepresentation, would it be permissiblefor Lawyer to represent Client in thismatter, consistent with her obligationsunder the Rules of Professional Conduct?

Background

The application of the “substantialrelationship” test is one of the most diffi-cult and contentious issues that a lawyermust face when considering whether heor she may represent a client whose inter-ests are adverse to those of a formerclient. On one hand, by limiting the scopeof prohibited matters to those that are thesame as or substantially related to thematter in which the lawyer representedthe former client, D.C. Rule 1.9 makesclear that it does not intend to prohibit allrepresentations that may be adverse tothe interest of a former client. In otherwords, there are clearly some matters—those that are neither the same as nor sub-stantially related to the prior matter—thata lawyer may take on even if doing sorequires the advancement of interests thatare adverse to those of a former client.This clearly reflects a policy judgmentthat clients ought generally to be free toengage the lawyers of their choice. Onthe other hand, D.C. Rule 1.9 alsoreflects the judgment that a lawyershould not be permitted (without the for-mer client’s informed consent) to take ona matter adverse to the interests of theformer client when doing so would putthe lawyer in a position of using knowl-edge obtained in the prior representationagainst the interests of the former client.

D.C. Rule 1.9 provides that “[a] lawyerwho has formerly represented a client ina matter shall not thereafter representanother person in the same or a substan-tially related matter in which that per-

son’s interests are materially adverse tothe interests of the former client unlessthe former client gives informed con-sent.” According to a new comment thatbecame effective in 2007, matters are“substantially related” for purposes ofthis rule

if they involve the same transaction orlegal dispute or if there otherwise is asubstantial risk that confidential factualinformation as would normally havebeen obtained in the prior representa-tion would materially advance theclient’s position in the subsequent mat-ter. . . A conclusion about the possessionof such information may be based on thenature of the services the lawyer provid-ed the former client and information thatwould in ordinary practice be learned bya lawyer providing such services.”

D.C. Rule 1.9, Comment [3] (emphasisadded).

The commentary to D.C. Rule 1.9expressly incorporates by reference Dis-trict of Columbia and federal case law onthe substantial-relatedness test, see, e.g.,Brown v. District of Columbia Board ofZoning Adjustment, 486 A.2d 37 (D.C.1984) (en banc); T.C. Theatre Corp. v.Warner Brothers Pictures, 113 F. Supp.265 (S.D.N.Y. 1953). The restrictionsimposed by D.C. Rule 1.9 are groundedin the obligations imposed by D.C. Rule1.6 to protect client confidences andsecrets. See D.C. Ethics Op. 239 (1993).Commentators agree that the function ofthe substantial-relationship test is to pro-tect client confidences. See Charles W.Wolfram, Former-Client Conflicts, 10Geo. J. Legal Ethics 677, 685-89 (1997).According to Geoffrey C. Hazard, Jr. andW. William Hodes, “most modernauthority holds that ‘substantial relation-ship’ is itself essentially a shorthand fornot abusing the former client’s confi-dences.” The Law of Lawyering § 13.5(Aspen 3d ed. 2000).1

The leading case in the District ofColumbia regarding the substantial-rela-tionship test is Brown v. District ofColumbia Board of Zoning Adjustment.The Brown case involved a series oftransactions concerning the same parties,

304 THE DISTRICT OF COLUMBIA BAR April 2008

1The Restatement notes that a legal position

taken in representing a former client ordinarily isnot considered to be a substantially related matterunless the underlying facts are also related. SeeRestatement (THIRD) of the Law GoverningLawyers § 132 cmt. D (2007). Thus, for example, alawyer can argue that a statute is constitutional onbehalf of one client and is unconstitutional in rep-resenting a subsequent client in a case not involv-ing the former client.

the same property, and similar objectives.Petitioners moved to disqualify two for-mer D.C. Corporation Counsel attorneyswho had represented the District ofColumbia in connection with issuesinvolving the property during their gov-ernment service. The Brown opinionheavily relied on the analysis in Westing-house Electric Corp. v. Gulf Oil Corp.,588 F.2d 221, 225 (7th Cir. 1978).According to Westinghouse, two matterswill be substantially related when confi-dential client information provided tocounsel in a prior matter “is relevant tothe issues raised in the litigation pendingagainst the former client.”2 Id. at 225.Moreover, when evidence demonstratesthat counsel may have had access toinformation that might be relevant or use-ful in the second case, “[r]ebuttal evi-dence must therefore focus on ‘the scopeof the legal representation’ involved ineach matter and not on the actual receiptof. . . information.” Id. at 224 (cited withapproval in Brown, 486 A.2d at 50).

In Brown, the factual overlap betweenthe transactions was sufficient for thecourt to conclude that the moving partyhad established a prima facie case for dis-qualification, shifting the burden of rebut-ting the inference to the formerCorporation Counsel attorneys and theirlaw firm. The court ultimately held thatthe former government attorneys success-fully rebutted the inference by demonstrat-ing that none of the information presentedin the earlier proceedings would have ben-efited the property owner in the currentproceeding. Thus, the court affirmed thefinding of the Board of Zoning Appealsthat disqualification was not required.

There are two additional decisions bycourts in the District of Columbia that arerelevant, and both of them involve formergovernment officials. In In re Sofaer, 728A.2d 625 (D.C. 1999), the respondent wasdisciplined for representing the govern-ment of Libya in a matter in which he par-ticipated as Legal Advisor of the StateDepartment. The respondent claimed thatthe substantial-relationship test did notapply because of the limited scope of thecurrent representation. The court addressedthat argument in the following terms:

Respondent insists that he stayed clearof that overlap by restricting the termsof his agreement to represent Libya so

as to “assum[e] Libya’s culpability forthe [Pan Am 103] bombing.” A lawyermay, of course, limit the objectives of arepresentation with client consent. Rule1.2(c). But respondent’s retainer agree-ment exemplifies why, in our view, lim-iting the private representation rarelywill succeed in avoiding the conver-gence addressed by Rule 1.11(a). Whilestating that “[the firm’s] efforts will notinclude substantial activities as litigatorsbut rather would be limited to activitiesassociated with agreed upon measures,including consensual dispositions,” theagreement emphasized that “[m]easureswill be taken only with your [i.e.,Libya’s] prior consent, and withoutadmission of liability” (emphasisadded). The proposed activities included“investigating the facts and legal pro-ceedings, preparing legal analyses, pro-viding legal advice and proposing legalsteps to deal with” the “ongoing civiland criminal disputes and litigation”stemming from the destruction of PanAm 103—all clearly features of a com-prehensive attorney-client relationship.We do not question the sincerity ofrespondent’s belief that the representa-tion could be insulated, factually andethically, from the investigation anddiplomatic efforts of which he had beenpart. The “substantially related” test byits terms, however, is meant to induce aformer government lawyer consideringa representation to err well on the side ofcaution. Respondent did not do so.

Id. at 628.In United States v. Philip Morris Inc.,

312 F. Supp. 2d 27 (D.D.C. 2004), theGovernment had brought a fraud andRICO suit against nine cigarette manu-facturing companies and two tobaccotrade associations. A former Departmentof Justice attorney, who had providedlegal advice to the FDA and HHS duringthe Youth Tobacco rulemaking proceed-ing and then participated on behalf of thegovernment in defending the regulationin court, filed a motion to intervene onbehalf of an Australian affiliate of BritishAmerican Tobacco in the fraud and RICOcase. In ruling on the government’smotion for disqualification, the court waspersuaded that information obtained bythe former government attorney in theFDA litigation would assist him in devel-oping strategy and arguments to rebut theGovernment’s claims, and the courtrefused to accept that the risk of misusingGovernment information was nonexist-ent. Id. at 42–43. Instead, citing theBrown decision, the court said that anycase involving close questions aboutwhether particular confidences would be

pertinent require disqualification of for-mer government lawyers. Id. at 45.3

Discussion

The D.C. Rules generally permit alawyer, with the informed consent of theclient, to “limit the objective of the repre-sentation.” See Rule 1.2(c).4 We haveexpressly recognized “that a client may,if fully informed and freely consenting,contract for limited service arrangementswith a legal services provider.” D.C.Ethics Op. 330 (2005). “The objectivesor scope of services provided by thelawyer may be limited by agreement withthe client or by terms under which thelawyer’s services are made available tothe client. For example, a retainer may befor a specifically defined purpose.” Rule1.2, Comment [4]. The Westinghouse andBrown opinions both recognize that thescope of representation provided to aclient is a critical factor in determiningwhether two matters are substantiallyrelated.

In discussing joint representation ofclients, Comment [4] to D.C. Rule 1.7explains that lawyers may limit their rep-resentation to avoid adversity, such as byagreeing to represent multiple clients inthe liability phase of a case, but not in the

April 2008 THE DISTRICT OF COLUMBIA BAR 305

2As applied to a former government attorney,

the Brown court broadened the test and deemed twomatters to be substantially related if the confiden-tial information of the former client was relevant oruseful in the current representation. Brown, 486A.2d at 49.

3Although not directly relevant, Laker Airways

Limited v. Pan American World Airways, 103F.R.D. 22, 38–42 (D.D.C. 1984), contains a usefuldiscussion of the applicability of the substantial-relationship test under the predecessor of D.C. Rule1.9. In Laker Airways, Judge Greene concluded thatthere was not a substantial relationship between alawyer’s representation of an airline on mattersconcerning the general antitrust immunity of theInternational Air Transport Association (IATA) andthe same lawyer’s later antitrust suit against thesame airline for conspiring at an IATA conferenceto engage in illegal price fixing. Although both rep-resentations “involve[d] IATA, its organization,operation and activities,” Judge Greene held thatthese facts were mere “resemblances” that were“general and superficial” and insufficient to satisfythe substantial-relationship test. Id. at 40.

4Similarly, the ABA’s Model Rule 1.2(c) pro-

vides that “[a] lawyer may limit the scope of therepresentation if the limitation is reasonable underthe circumstances and the client gives informedconsent.” Cf. D.C. Rule 1.2 cmt. 5 (“An agreementconcerning the scope of representation must accordwith the Rules of Professional Conduct and otherlaw. Thus, the client may not be asked to agree torepresentation so limited in scope as to violate Rule1.1, or to surrender the right to terminate thelawyer’s services or the right to settle litigation thatthe lawyer might wish to continue.”). Moreover, asrequired by D.C. Rule 1.4(b), a lawyer mustexplain to the client the benefits and drawbacks ofthe limited scope relationship so that the client hassufficient information to make an informed deci-sion regarding the representation. Cf. ABA Comm.On Ethics and Prof’l Responsibility, Formal Op.07-447 (2007).

damages phase. Other ethics committeesand authorities have acknowledged thatlimiting the scope of representation mayeliminate adversity, such that a lawyercan continue representing a client whoseposition is otherwise adverse to a formerclient. See ABA/BNA Lawyers’ Manualon Professional Responsibility 51:221(“Adversity may sometimes be avoidedby limiting the scope of the current repre-sentation to avoid clashing with a formerclient’s interests, as long as the currentclient gives informed consent.”); Wol-fram, supra, at 736; see also New YorkCity Bar Op. 2001-3 (explaining that alawyer may be able to avoid adversity bylimiting the representation to certainclaims or by helping the client find otherrepresentation for issues in a case thatwould cause a conflict).5 The Restate-ment likewise suggests that “the lawyermay limit the scope of representation of alater client so as to avoid representationsubstantially related to that undertakenfor a previous client.” Restatement of theLaw Governing Lawyers at § 132 cmt. E(2007). The Restatement illustrates thiscomment with an example in which alawyer agrees to restrict the scope of rep-resentation of Client B so that confiden-tial information obtained from Client A ina prior representation would not be rele-vant to the subsequent representation.With that limitation, the representation ofClient B would not be adverse.

Both of the categories discussed belowpresent an example of how a lawyer mayavoid creating a conflict of interest underD.C. Rule 1.9 by participating in a dis-crete aspect of a particular matter.6 How-ever, it is critical to note that theseexamples present a rather idealized set ofcircumstances. The fact that a conflict ofinterest may potentially be avoided doesnot, of course, mean that such conflicts

can actually be avoided under a specificset of facts that a lawyer may actuallyface. We shall, therefore, endeavor toidentify below which facts are importantin determining whether a conflict underD.C. Rule 1.9 can actually be avoided.

A. Limiting Participation by Represent-ing a Client Only on a Discrete LegalIssue

Our first category involves a lawyerwho is hired only to represent a client ona discrete legal question. Our exampleinvolves Lawyer, whom Client wouldlike to hire on the question of defendingClient’s patent against claims by thedefendant Company that the patent hadnot been properly assigned to Client inadvance of Client’s bringing suit.Because Lawyer’s law firm had previ-ously represented Company in a differentcase involving infringement claims basedon the same underlying technology,Lawyer has sought to limit the scope ofher representation so that she representsClient only on the assignment question.Client would be separately representedby other counsel on the claims that Com-pany has infringed Client’s patent.7

To the extent that Lawyer’s participa-tion in the lawsuit can genuinely be lim-ited to the assignment issues, Lawyer’sparticipation in the lawsuit would notviolate D.C. Rule 1.9. The matter onwhich Lawyer represents Client is notsubstantially related to the matter onwhich Lawyer’s law firm had previouslyrepresented Company. We caution, how-ever, that Lawyer must ensure that herparticipation in the case never extends tothe patent infringement issues. Indeed, itwould be essential to maintain whollyseparate litigation teams to handle thetwo sides of this case. Such a structure islikely to be unusual, and Lawyer wouldbe expected to explain all of this prior toobtaining Client’s consent. But if Clientis prepared to accept the costs and ineffi-ciencies that such a rigid and artificialdivision would require—and assuming,of course, that Lawyer can provide com-petent representation under these condi-tions—such a limited representationwould not run afoul of D.C. Rule 1.9.

B. Limiting Participation by Represent-ing a Client Only at a Discrete Stage ofLitigation

The second category of ways in whichthe scope of representation may be limitedinvolves a lawyer’s participation at a dis-crete stage in litigation. Client has soughtto hire Lawyer for her expertise inSupreme Court litigation against Companywhere the only issue is a pure question oflaw that does not depend on the underlyingfactual record for resolution. Lawyer’s lawfirm had previously represented Companyin a matter that would be considered sub-stantially related to the underlying litiga-tion in this case. In other words,confidential information that would nor-mally have been obtained by lawyers atLawyer’s law firm would have been rele-vant or useful to counsel for Client at trialor in assessing the value and wisdom of asettlement. So, without Company’s con-sent, neither Lawyer nor her law firmcould have represented Client at trial. Butthe question is whether the proposed limi-tations on the scope of the representationat this late stage in the litigation are suffi-cient to rebut the presumption that thesetwo, factually related matters are, in fact,“substantially related” to one another with-in the meaning of D.C. Rule 1.9.

Lawyer and Client have agreed thatLawyer’s engagement is limited to rais-ing a question of federal jurisdiction inchallenging the lower court’s decision.This is a pure legal issue that was neverpart of the prior representation providedby Lawyer’s firm to Company. Given thelimited scope of Lawyer’s representation,there is no basis to conclude that confi-dential information of Company that isimputed to Lawyer would be relevant toor useful in Lawyer’s representation ofClient.8 Because the limitations on thescope of Lawyer’s representation haveeliminated virtually any risk that Compa-ny’s confidential information would beused by Lawyer, we conclude that thetwo matters are not substantially relatedto one another and that D.C. Rule 1.9does not, therefore, apply.9

306 THE DISTRICT OF COLUMBIA BAR April 2008

7We do not address here the separate issues that

could arise when a lawyer’s past work (or the pastwork of others in the lawyer’s firm) becomes anissue in litigation between the lawyer’s client and athird party and the lawyer is asked to represent theclient in such litigation. Such a representation mayraise issues under D.C. Rule 1.7(b)(4) implicatingthe lawyer’s own business or personal interests aswell as under D.C. Rule 3.7 concerning thelawyer’s obligations as a potential witness.

8Although we have been assuming that the con-

fidential information would not be relevant or use-ful in Lawyer’s representation, it would certainlybe advisable for the other lawyers in Lawyer’s firmwho were privy to such information from the priorcase to avoid any involvement in the litigationbefore the Supreme Court. Although not requiredunder our rules, such precautions would certainlymake it easier for Lawyer to prove, for example,that no confidences or secrets were, in fact, dis-closed or used in violation of D.C. Rule 1.6.

9Our conclusion here does not apply to discrete

stages of the same matter. In other words, if

5New York City Bar Op. 2001-3 (“[T]he scope

of a lawyer’s representation of a client may be lim-ited in order to avoid a conflict that might other-wise result with a present or former client, providedthat the client whose engagement is limited con-sents to the limitation after full disclosure and thelimitation on the representation does not render thelawyer’s counsel inadequate or diminish the zeal ofthe representation. An attorney whose representa-tion has been limited, however, must be mindful ofher duty of loyalty to both clients. Where the por-tion of the engagement to be carved out is discreteand limited in scope, such a limitation may wellresolve the conflict presented.”).

6Although we identify and discuss two specific

examples of how a lawyer may limit the scope ofrepresentation to avoid creating a conflict of inter-est under D.C. Rule 1.9, we do not mean to suggestthat these are the only two ways in which this issuemay arise.

However, we note that even in litiga-tion before the Supreme Court on whatappears to be a purely legal issue, confi-dential factual information may turn outto be useful to a lawyer. Supreme Courtcases are sometimes about narrow proce-dural questions—e.g., whether a casemust be heard in state court rather thanfederal court—or about discrete, thresh-old legal issues—e.g., whether a particu-lar statute gives a plaintiff standing tosue. But, at other times, the cases areabout whether a particular party is enti-tled to prevail on the facts as presentedand developed at trial. Even if such factsare “frozen” by the time the case reachesthe Supreme Court, where a lawyer has(or is presumed to have) relevant infor-mation about the underlying facts from aprior representation of the adverse party,D.C. Rule 1.9 is likely triggered even ifher representation were limited to theSupreme Court stage of the litigation. Inother words, whether or not a lawyer mayavoid a conflict under D.C. Rule 1.9 bylimiting her participation to a discretestage in the litigation will depend, at leastin part, on the nature of the legal questionthat she is asked to present. The confi-dential information in the hands of otherlawyers in Lawyer’s firm, which isimputed to Lawyer and must therefore bepresumed to be in Lawyer’s possession,could well prove significant in the wayshe argues the case. In such situations,the matters would indeed be substantiallyrelated, and her representation would beimproper unless the former client con-sents. But there are certainly those casesthat turn on discrete, interlocutory ques-tions of law that have nothing to do withthe underlying merits of the case, and webelieve that a lawyer’s limiting the scopeof her representation to such issueswould likely not present a problem underD.C. Rule 1.9. We are mindful of theCourt of Appeals’ admonition in In reSofaer, that even if a lawyer sincerelybelieves that his or her representation“could be insulated, factually and ethical-ly,” from the earlier representation, thebelief might be mistaken. In that case,

“[t]he ‘substantially related’ test by itsterms,. . . is meant to induce a. . . lawyerconsidering a representation to err wellon the side of caution.” 728 A.2d at 628.

* * * * *

Even if it is permissible generally torestrict a representation to avoid substan-tial overlap with a prior representation, itmay not be possible in a particular case.Private lawyers, like former governmentlawyers, should “err well on the side ofcaution.” Id.10 We have considered twodifferent categories in which a lawyermay avoid the applicability of D.C. Rule1.9—by agreeing only to represent aclient as to a discrete legal issue and byagreeing to represent a client with respectto a discrete stage of the litigation. Whilewe recognize that these categories can,under appropriate conditions, allow forlawyers to represent clients without vio-lating D.C. Rule 1.9, we also appreciatethat it may prove very difficult forlawyers to do so in fact. Where confiden-tial information from the prior represen-tation could be useful in or relevant to thenew representation—however it may belimited or circumscribed—then the sub-stantial-relationship test is satisfied, andthe new representation may not proceedwithout the consent of the former client.

Inquiry No. 07-03-22Published: February 2008

Opinion 344

Conflicts of Interest for LawyersEngaged in Lobbying Activities ThatAre Not Deemed to Involve the Prac-tice of Law

• The District of Columbia Rules ofProfessional Conduct regulate “lobbyingactivity” by lawyers who practice law in

the District of Columbia. The conflictsrules for lobbying matters are as follows:

• Rule 1.7(a) prohibits one lawyer orlaw firm from advancing opposingpositions in the same lobbying matter.This conflict cannot be waived.

• Lobbying representations are not sub-ject to Rule 1.7(b)(1) because suchrepresentations are not “mattersinvolving a specific party or parties,”a phrase which excludes lobbying,rulemaking and other matters of gen-eral government policy.

• Rules 1.7(b)(2), (b)(3) and (b)(4) pro-hibit lobbying representations if:

• The proposed representation islikely to be adversely affected byanother representation;

• Another representation is likely tobe adversely affected by the pro-posed representation; or

• The lawyer-lobbyist’s professionaljudgment reasonably may beadversely affected by the lawyer’sresponsibilities to or interests in athird party, or the lawyer’s ownfinancial, business, property, orpersonal interests.

• Typically apparent in “punch-pulling”situations where the lawyer’s zealous-ness in one representation mayarguably be compromised by repre-sentations of other clients or by otherinterests of the lawyer, these conflictscan be waived in some circumstancesthrough informed consent from theaffected clients. See Rule 1.7(c).Because nonlawyers may engage in

lobbying activity, lawyers and their asso-ciates may remove such activities fromthe conflicts provisions of the Rules ofProfessional Conduct through strict com-pliance with the regulations of D.C. Rule5.7 for “law-related services.” To do so,however, the lobbying client mustreceive clear notice that the services arenot legal services and that the usual pro-tections accompanying a client–lawyerrelationship do not apply.

Applicable Rules• Rule 1.0(h) (Terminology: Defini-

tion of “Matter”)• Rule 1.6 (Confidentiality of Infor-

mation)• Rule 1.7 (Conflicts of Interest: Gen-

eral)• Rule 1.10 (Imputed Disqualification

General Rule)• Rule 1.11 (Successive Government

and Private or Other Employment)• Rule 5.3 (Responsibilities Regard-

September 2008 THE DISTRICT OF COLUMBIA BAR 307

Lawyer’s law firm had represented Company attrial in the same case (as opposed to having repre-sented Company in an entirely separate matter),Lawyer could not argue that she is free to representthe other side against Company in the SupremeCourt on the grounds that the issues before theCourt are entirely distinct from those on whichLawyer’s colleagues had represented Company attrial. In such a circumstance, we believe that alawyer who switches sides in the same case (albeitat a later stage where the issues are different) trig-gers the prohibitions of D.C. Rule 1.9, regardless ofhow a lawyer might limit the scope of representa-tion in the subsequent stage of the matter.

10We do not intend this Opinion to address the

application of the substantially related test to thespecific situation of former government lawyersunder D.C. Rule 1.11(a). Although we acknowledgethat D.C. Rules 1.9 and 1.11 use the same terms todescribe the relationship between former and cur-rent matters, cases involving the disqualification offormer government lawyers also raise concernsabout the possible misuse of information obtainedunder government authority and about actions takento enhance the government lawyer’s private sectoremployment prospects. See Brown, 486 A.2d at 43,cited with approval Philip Morris, 312 F. Supp. 2dat 38. In light of these and other concerns unique tothe former government lawyer context, we leave foranother day the question whether former govern-ment lawyers may limit the scope of their subse-quent representation and thereby avoid a conflict ofinterest under D.C. Rule 1.11(a).

ing Nonlawyer Assistants)• Rule 5.4 (Professional Indepen-

dence of a Lawyer)• Rule 5.7 (Responsibilities Regard-

ing Law-Related Services)

Inquiry

The Committee on Unauthorized Prac-tice of Law of the District of ColumbiaCourt of Appeals (the “UPL Committee”)recently issued an opinion concludingthat “U.S. legislative lobbying does notconstitute the practice of law under Rule49, and Rule 49 does not require individ-uals engaged in such lobbying to bemembers of the D.C. Bar.” UnauthorizedPractice of Law Opinion 19-07, Applica-bility of Rule 49 to U.S. Legislative Lob-bying (Dec. 17, 2007) [hereinafter the“UPL Opinion”]. In the wake of thatopinion, the Legal Ethics Committee hasreceived an inquiry about the obligationsof a lawyer-lobbyist who is a member ofthe D.C. Bar. The inquirer asked whethera lawyer has a conflict of interest underRule 1.7 when she lobbies Congress infavor of a special tax break for her ClientX even though she knows the break willdirectly disadvantage the lawyer’s otherclient, Client Y.

The specific holding of the UPL Opin-ion was that “U.S. legislative lobbyingdoes not constitute the practice of lawwithin the meaning of Rule 49(b).” Forpurposes of its opinion, the UPL Com-mittee defined the phrase “U.S. legisla-tive lobbying” in a way that “does notnecessarily include all activities” relatedto congressional matters.1 The UPLOpinion is narrowly drawn—activities

outside the scope of this definition mayconstitute the practice of law.2

Having defined an area that does notinvolve the practice of law, the UPLOpinion confirms that nonlawyers mayestablish offices in the District of Colum-bia for the purpose of “U.S. legislativelobbying.” Similarly, lawyers licensed inother jurisdictions, but not in the Districtof Columbia, may act as “U.S. legislativelobbyists” from offices in the District ofColumbia. UPL Opinion, at 3-4.

Non-D.C. lawyers lobbying from theoffices of law firms in the District ofColumbia “must make clear that they arenot engaged in the general practice of lawin the District of Columbia.” Id. at 4. Thisis so because Rule 49 prohibits personsnot licensed in D.C. to “hold [them-selves] out” as being authorized to prac-tice law in D.C.3 As the UPL Opinionnotes, “[i]dentifying an individual as alawyer in a D.C. law firm generallyimplies that the individual is authorizedto practice law in the District of Colum-bia.” UPL Opinion at 4. Consistent withthe approach used for several other limit-ed practice exceptions to Rule 49, theUPL Opinion suggests certain dis-claimers and notices on business cards,websites and correspondence that willavoid any impermissible holding out. Id.at 4-5.

The UPL Committee specificallydeclined to address “whether or to whatextent (a) legislative lobbyists may besubject to the professional obligations oflawyers or (b) communications betweenlobbyists and clients may be protected by

the attorney–client privilege.” UPL Opin-ion at 6. Like the UPL Committee, wealso decline to address the applicabilityof the attorney–client privilege to com-munications between clients and lawyer-lobbyists.4

The immediate question before us ishow Rule 1.7 on conflicts of interestapplies to cases in which a lawyer under-takes a lobbying activity as a legal repre-sentation. The principles stated in thisOpinion regarding conflicts of interestapply to lobbying activities related toboth legislative matters and executivebranch rulemaking matters. Implicit inthe immediate question is the applicabili-ty of Rule 1.7 to lobbying services that donot themselves involve the practice oflaw but are provided by lawyers or non-lawyers affiliated with law firms.

Although the inquiry before usinvolves only lobbying before Congress,the established understanding of thephrase “involving a particular party orparties” means that the principles dis-cussed in this opinion also apply to con-flict-of-interest questions faced bylawyers who lobby other legislative bod-ies, or who lobby administrative agenciesor executive branch officials on legisla-tion, rulemaking or other matters of gen-eral policy. The Rules of ProfessionalConduct do not distinguish between lob-bying at the federal level and lobbying atthe state or local level.

Discussion

At one level, the inquiry asks whetherlawyer conduct rules apply when non-legal lobbying services are performed.As discussed in Part I below, the D.C.Rules of Professional Conduct regulate“lobbying activity” when undertaken bylawyers. Specific conflict-of-interestrules apply to such activities. Part II dis-cusses the ability of lawyers and law

308 THE DISTRICT OF COLUMBIA BAR September 2008

1According to the UPL Committee,

[t]his Opinion uses the term “U.S. legislativelobbying” to refer to any activities to influ-ence, through contacts with members ofCongress and their staffs, the passage ordefeat of any legislation by the U.S. Con-gress, as well as other congressional actionssuch as ratification of treaties and confirma-tion of nominees. Such activities mayinclude, but are not limited to: oral, written,and electronic communications with mem-bers of Congress, congressional committees,and congressional staff with regard to theformulation, modification, or adoption offederal legislation; preparation and planningactivities, research, and other backgroundwork in support of such contacts; and devel-opment of legislative strategy and tactics.The term does not necessarily include allactivities that have a relationship with con-gressional actions. For example, advising aclient about how legislative testimony mightaffect pending or prospective criminal orcivil litigation before a court may constitutethe practice of law.

UPL Opinion at 1-2 (emphasis added). The UPLOpinion also “does not address lobbying of theexecutive branches of the U.S. or D.C. govern-ments, including federal and D.C. departments andadministrative agencies.” Id. at 7 (noting that unau-thorized practice of law questions respecting suchrepresentations are addressed in subsections (c)(2)and (c)(5) of Rule 49).

2While the UPL Opinion does not address

whether individuals “may use the District ofColumbia as a base for lobbying legislative bodiesother than the U.S. Congress,” it notes that “someof the principles addressed in this Opinion mayapply in that context.” UPL Opinion at 8.

3Holding out, for purposes of Rule 49, means:

to indicate in any manner to any other personthat one is competent, authorized, or avail-able to practice law from an office or loca-tion in the District of Columbia. Among thecharacterizations which give such an indica-tion are “Esq.,” “lawyer,” “attorney at law,”“counselor at law,” “contract lawyer,” “trialor legal advocate,” legal representative,”“legal advocate,” and “judge.”

Rule 49(b)(4).

4The applicability of the attorney–client privi-

lege is a question of law outside the scope of ourjurisdiction. Lawyer-lobbyists should be aware,however, that there is case law to the effect that theattorney-client privilege does not apply to commu-nications between a client and a lawyer who is act-ing solely or primarily as a lobbyist. See, e.g., In reGrand Jury Subpoenas Dated March 9, 2001, 179F. Supp. 2d 270, 285 & 289-91 (S.D.N.Y. 2001)(noting, however, that “the inquiry is fact-specif-ic”). The lawyer’s ethical obligation to preserveclient “confidences and secrets” is broader than theattorney-client privilege. Under Rule 1.6(b),lawyers must also protect unprivileged “secrets,”which the rules define as “other information gainedin the professional relationship that the client hasrequested be held inviolate, or the disclosure ofwhich would be embarrassing, or would be likelyto be detrimental to the client.”

firms to take certain steps to avoid theapplication of those conflict rules to lob-bying and other “law-related services”under the District of Columbia’s newRule 5.7. Absent strict compliance withthe requirements of Rule 5.7, the con-flicts rules will apply to lobbying activ-ities by D.C. lawyers, law firms, andtheir lobbying associates, partners andaffiliates.

I. Prohibited Conflicts of Interest inLobbying Activities Governed by theRules of Professional Conduct

The Rules of Professional Conductregulate a lawyer’s “lobbying activity.”Rule 1.0(h) defines “matter” to

mean[ ] any litigation, administrativeproceeding, lobbying activity, applica-tion, claim, investigation, arrest, chargeor accusation, the drafting of a contract,a negotiation, estate or family relationspractice issue, or any other representa-tion, except as expressly limited in aparticular rule.

(emphasis added).5 The last clause of thisdefinition is critical because, as discussedbelow, lobbying matters are effectivelyexcluded from the operation of one of theprohibitions of Rule 1.7, specifically sub-section (b)(1). But lobbying mattersremain subject to the rest of the prohibi-tions, specifically subsections (a), (b)(2),(b)(3) and (b)(4) of Rule 1.7.

Rule 1.7 governs conflicts among cur-rent clients of the lawyer or law firm. Itdivides such conflicts into two broad cat-egories, those that may be waived andthose that cannot be waived. Rule 1.7(a)defines a situation in which a proposedrepresentation is absolutely prohibited,even if all potentially affected clients arewilling to consent. Rule 1.7(b) definesfour situations in which a representationis only conditionally prohibited. Repre-sentations governed by Rule 1.7(b) maybe undertaken if each potentially affectedclient provides informed consent and thelawyer reasonably believes that thelawyer will be able to provide competentand diligent representation to each client.See Rule 1.7(c).

A. Rule 1.7(a)—RepresentationAbsolutely Prohibited

Rule 1.7(a) provides that “a lawyer shallnot advance two or more adverse positionsin the same matter.” This prohibition can-not be waived by the affected clients. Itapplies to lobbying activities by virtue ofthe underlying definition of “matter.”Indeed, the Peters Committee, which rec-ommended the current formulation of therules on these issues, specifically conclud-ed that lobbying opposite sides of the sameissue should be prohibited:

[T]he Committee rejected the conceptthat lobbying should be totally excludedfrom the reach of Rule 1.7 and express-ly included lobbying in the definition of“matter” proposed in the Terminologysection of the Rules. As a result, Rule1.7(a) applies to lobbying activities andprevents a lawyer from lobbying for oneposition for one client in the same mat-ter in which the lawyer (or the lawyer’sfirm, see Rule 1.10(a)) is lobbying for aconflicting position on behalf of a sec-ond client.

Peters Report at 18. Although ABAModel Rule 1.7 and D.C. Rule 1.7 “statethe position differently, both rules pro-hibit the lawyer from advancing twoadverse positions in the same matter orproceeding, even with the client’s con-sent. [D.C.] Rule 1.7(a) states the posi-tion succinctly: ‘A lawyer shall notadvance two or more adverse positions inthe same matter.’”6

The pending inquiry before the Com-mittee does not involve Rule 1.7(a)because the lawyer-lobbyist has not beenasked to advocate opposite sides of thesame lobbying issue. Instead, she hasbeen asked to pursue a tax break forClient X even though she knows that thetax break will directly disadvantageanother client (Client Y) whom thelawyer (or the firm) is not representing inthat particular lobbying matter.

B. Rule 1.7(b)—Representation Condi-tionally Prohibited

Rule 1.7(b) defines four conflicts situ-ations in which a representation is pro-hibited unless each potentially affectedclient gives informed consent and the

other requirements of Rule 1.7(c) are sat-isfied. As discussed below, the first of thefour does not apply to lobbying matters.The remaining three do.

1. Rule 1.7(b)(1)—Adversity to Anoth-er Client in a Matter Involving a Spe-cific Party or Parties

Rule 1.7(b)(1) provides:

[A] lawyer shall not represent a clientwith respect to a matter if . . . that mat-ter involves a specific party or partiesand a position to be taken by that clientin that matter is adverse to a positiontaken or to be taken by another client inthe same matter even though that clientis unrepresented or represented by a dif-ferent lawyer.

Rule 1.7(b)(1) (emphasis added).The inquirer did not say whether the

lawyer expects the other client to lobbyagainst the tax break she will be seekingfor the first client. If the other client’sactive participation were expected in thelobbying matter, the representation of thefirst client would involve the lawyer takinga position known to be adverse to anotherclient’s position in the same matter.

However, that alone is not enough tocreate a conflict under Rule 1.7(b)(1)because of the limitation of that rule to“matter[s] involv[ing] a specific party orparties.” That phrase is a term of art,which, for the reasons discussed below,has the effect of removing lobbying rep-resentations from the operation of Rule1.7(b)(1).

Part (a) explains why the limitation ofRule 1.7(b)(1) to “matter[s] involv[ing] aspecific party or parties” effectivelyexcludes lobbying representations. Part(b) summarizes the history of revisionsthat led to the current rule, a history whichconfirms the conclusion in Part (a).

a. Meaning of Phrase “Matter Involv-ing a Specific Party or Parties”

The key to the analysis is the meaningof the phrase “matter involv[ing] a specif-ic party or parties.” The phrase appears inonly two places in the Rules of Profes-sional Conduct: Rule 1.7(b)(1) and Rule1.11, which deals with the ability of alawyer to represent clients after leavinggovernment service for private practice.As discussed in Part (i) below, the phrasehas a black-letter law meaning for pur-poses of Rule 1.11, a meaning that pre-ceded incorporation of the phrase intoRule 1.7(b)(1) and that excludes lobbyingmatters from the conflicts rule. Underestablished principles of statutory and

September 2008 THE DISTRICT OF COLUMBIA BAR 309

5The D.C. Court of Appeals added this defini-

tion to the Rules in November 1996, after receivingand considering a number of recommendationsfrom the Bar. See Proposed Amendments to theDistrict of Columbia Rules of Professional Conduct(as adopted by the Board of Governors March 8,1994) [hereinafter “Peters Report”]. As discussedin more detail below, one purpose of the recom-mended changes was to revise and clarify the ruleson conflicts of interest in the lobbying context. Seeid. at 3-4 & 17-18.

6William V. Luneburg & Thomas M. Susman,

The Lobbying Manual: A Complete Guide to Fed-eral Law Governing Lawyers & Lobbyists § 27-3.6.2.1, at 501 (3d Ed. 2005) (providing thefollowing example of a “nonconsentable” conflictin the lobbying context: “Handgun Control, Inc.calls to retain you to lobby for an extension of theassault weapon ban; the NRA calls the next day tohire you to lobby against an extension.”)

regulatory construction, the phrase musthave the same meaning in each rule whereit appears, as discussed in Part (ii). Whilethere is some arguably inconsistent lan-guage in one of the comments to Rule 1.7,the text of the rules controls over the com-ments, as discussed in Part (iii).

(i.) Meaning of the Phrase “MatterInvolving a Specific Party or Par-ties” in Rule 1.11

Rule 1.11(g) confines the operation ofthe rule to a “matter involving a specificparty or parties.” “‘Matter’ is defined inparagraph (g) so as to encompass only mat-ters that are particular to a specific party orparties. The making of rules of generalapplicability and the establishment of gen-eral policy will ordinarily not be a ‘matter’within the meaning of Rule 1.11.” Rule1.11, Comment [3] (emphasis added).

This interpretation comes from thewell-established understanding of themeaning of an analogous phrase in 18U.S.C. § 207, which imposes certainrestrictions on the work that may be per-formed by former government employeesand officials after they leave governmentservice. Some of those restrictions applyonly to a “matter . . . involv[ing] a spe-cific party or specific parties.” 18 U.S.C.§ 207(a)(1)(C) & (a)(2)(C). “Legislationor rulemaking of general applicabilityand the formulation of general policies,standards or objectives, or other mattersof general applicability are not particularmatters involving specific parties.” Post-Employment Conflict of Interest Restric-tions, 73 Fed. Reg. 36,168, at 36,193(June 25, 2008) (to be codified at 5C.F.R. § 2641.201(h)(2)) [hereinafter“Federal Post-Employment Conflict ofInterest Restrictions”].7

In Opinion 297, we considered whethera former government lawyer’s participa-tion in a negotiated rulemaking precludedhim from subsequent representationsinvolving those rules. We concluded that,because the former government lawyer’swork on a negotiated rulemaking did notinvolve a particular party or parties, “suc-cessive representation is not per se pro-hibited by Rule 1.11(a) and (g) where theinitial representation is in connection witha rulemaking of general applicability.”D.C. Ethics Op. 297 (2000).

(ii.) The Phrase “Matter Involving aSpecific Party or Parties” MustHave the Same Meaning in Rule1.7(b)(1) As It Has in Rule 1.11

The phrase “matter involving a specif-ic party or parties” cannot have onemeaning in Rule 1.11 and a differentmeaning in Rule 1.7(b)(1). As a generalprinciple of construction, “a particularterm should be assumed to have a consis-tent definition throughout a statute.”Dupont Circle Citizens Ass’n v. Districtof Columbia Board of Zoning Adjust-ment, 749 A.2d 1248, 1263 n.12 (D.C.2000) (citing Carey v. Crane Serv. Co.,Inc., 457 A.2d 1102, 1108 (D.C.1983)).Application of that principle compels theconclusion that Rule 1.7(b)(1) excludeslegislative lobbying matters.

Moreover, the phrase had a clearmeaning in the context of former govern-ment lawyers long before it was everadded to Rule 1.7. Where the lawmaker“borrows terms of art in which are accu-mulated the legal tradition and meaningsof centuries of practice, it presumablyknows and adopts the cluster of ideas thatwere attached to each borrowed word inthe body of learning from which it wastaken.” 1618 Twenty-First Street Tenants’Ass’n v. Phillips Collection, 829 A.2d201, 202 (D.C. 2003) (quoting Bates v.District of Columbia Bd. Of Elections &Ethics, 625 A.2d 891, 894 (D.C. 1993))(additional citations omitted).

Applying those principles here, thephrase “matter involv[ing] a specificparty or parties” must be given the samemeaning for purposes of Rule 1.7(b)(1)as it has for Rule 1.11 and the progenitorof Rule 1.11, 18 U.S.C. § 207. Given the

well-established meaning of that phrasefor purposes of Rule 1.11 and 18 U.S.C.§ 207, Rule 1.7(b)(1) does not apply tolobbying representations involving legis-lation, rulemaking or other matters ofgeneral policy.

(iii.) The Text of Rule 1.7(b)(1) ControlsOver Any Inconsistent Languagein the Comments to Rule 1.7.

The analysis thus far has focused onlyon the text of Rule 1.7(b)(1), Rule 1.11,and the established meaning of the phrase“matter involving a specific party or par-ties” as used in Rule 1.11 and its prede-cessors. Rule 1.7 has a comment which, ifread in isolation, could suggest a greaterduty under Rule 1.7(b)(1) when thelawyer knows or has some way of discov-ering that another client is likely to opposeor disagree with the result being soughtthrough the lawyer’s lobbying efforts.8

310 THE DISTRICT OF COLUMBIA BAR September 2008

7This final rule release replaces a similar rule

which provided that a matter involving a specificparty or specific parties “typically involves a spe-cific proceeding affecting the legal rights of theparties or an isolatable transaction or related set oftransactions between identifiable parties. Rulemak-ing, legislation, the formulation of general policy,standards or objectives, or other action of generalapplication is not such a matter. 5 C.F.R. §2637.201(c)(1) (2007) (emphasis added). See alsoLaker Airways Ltd. vs. Pan American World Air-ways, 103 F.R.D. 22, 34 (D.D.C. 1984) (“In short,a government attorney may participate in legisla-tive or other policy-making activity without pre-cluding his subsequent representation of privateparties affected by such rules or policies”). There isauthority “that certain rulemakings, although rare,may be so focused on the rights of specificallyidentified parties as to fall within the ambit of sec-tion 207(a) even though most rulemaking proceed-ings are of general applicability beyond the scopeof [that section].” Federal Post-Employment Con-flict of Interest Restrictions, 73 Fed. Reg. at 36,176

(citations omitted) (emphasis added). But cf. id. at36,193 (to be codified at 5 C.F.R. § 2641.201(h)(2),Example 5) (giving an example where even a rule-making that has an immediate effect on only threeor four companies nevertheless constitutes a rule-making of general applicability). Private relief leg-islation may also involve specific parties. SeeOffice of Government Ethics Advisory Opinions 83x 7 and 06 x 9.

8Comment [19] to Rule 1.7 provides as follows:

Lawyer’s Duty to Make Inquiries to Deter-mine Potential Conflicts

[19] The scope of and parties to a “matter”are typically apparent in on-the-recordadversary proceedings or other proceedingsin which a written record of the identity andthe position of the parties exists. In Rule1.7(b)(1), the phrase “matter involving a spe-cific party or parties” refers to such situa-tions. In other situations, however, it may notbe clear to a lawyer whether the representa-tion of one client is adverse to the interests ofanother client. For example, a lawyer mayrepresent a client only with respect to one ora few of the client’s areas of interest. Otherlawyers, or non-lawyers (such as lobbyists),or employees of the client (such as govern-ment relations personnel) may be represent-ing that client on many issues whose scopeand content are unknown to the lawyer.Clients often have many representatives act-ing for them, including multiple law firms,nonlawyer lobbyists, and client employees.A lawyer retained for a limited purpose maynot be aware of the full range of a client’sother interests or positions on issues. Exceptin matters involving a specific party or par-ties, a lawyer is not required to inquire of aclient concerning the full range of thatclient’s interests in issues, unless it is clear tothe lawyer that there is a potential for adver-sity between the interests of clients of thelawyer. Where lawyers are associated in afirm within the meaning of Rule 1.10(a), therule stated in the preceding sentence must beapplied to all lawyers and all clients in thefirm. Unless a lawyer is aware that repre-senting one client involves seeking a result towhich another client is opposed, Rule 1.7 isnot violated by a representation that eventu-ates in the lawyer’s unwittingly taking aposition for one client adverse to the interestsof another client. The test to be applied hereis one of reasonableness and may turn onwhether the lawyer has an effective conflictchecking system in place.

Such a reading cannot be reconciled withthe limitation of Rule 1.7(b)(1) to a “mat-ter involv[ing] a specific party or parties”because that phrase takes lobbying mattersand other matters of general policy out ofthe rule. The use of the word “party” wasintended to limit the scope of Rule1.7(b)(1) to those situations that involveparticular clients participating in a pendingor threatened adjudicative proceeding, anegotiation of a contract, or other discreteand isolatable transactions between identi-fiable and specific persons.9 To the extentthat the comment suggests otherwise, thelanguage of the rule must control. Asexplained in Paragraph [6] of the Scopesection of the Rules, “[t]he Comments areintended as guides to interpretation, but thetext of each Rule is controlling.”

Thus, whether the lawyer knows or hasa way of knowing that other clients mayhave different views of the lobbying issueis irrelevant for purpose of Rule 1.7(b)(1)because Rule 1.7(b)(1) does not regulatelobbying matters or other matters of gen-eral policy.

b. The Legislative History of Rule1.7(b)(1) Confirms That the Court ofAppeals Adopted a Bright Line Test toEliminate Substantial UncertaintiesThat Lawyer-Lobbyists Would Other-wise Face

When the District of Columbia Bar rec-ommended the initial adoption of Rule 1.7,it rejected the ABA’s Model Rule 1.7. Asexplained by the Bar Committee’s report:

[T]he ABA draft . . . is so confusinglyorganized and ambiguously worded that itgives little guidance to lawyers trying tounderstand it or conform to it. Althoughthe ABA drafters state in their notes thattheir draft is intended to codify standardsthat have evolved in application of thepreexisting disciplinary rule and the“appearance of impropriety” test, thosestandards are not self-evident from a read-ing of the proposed language. Instead,members of the Bar would be forced toparse ambiguous phraseology and evenperform research concerning case law andD.C. Bar Legal Ethics Committee inter-

pretations before they could get a clearidea of what this basic rule means.

Proposed Rules of Professional Conductand Related Comments, Showing theLanguage Proposed by the American BarAssociation, Changes Recommended bythe District of Columbia Bar ModelRules of Professional Conduct Commit-tee, and Changes Recommended by theBoard of Governors of the District ofColumbia Bar at 67 (Nov. 19, 1986)[hereinafter the “Jordan Report”].

Both the Jordan Committee and itssuccessor, the Peters Committee, devotedextensive resources to consideration ofwhat the rules should be in the context oflobbying, where the potentially affectedor interested players are not readilyapparent at the outset, and where theactive players and positions shift andchange over time. It was at the PetersCommittee’s recommendation that, inNovember of 1996, the District ofColumbia Court of Appeals adopted thecurrent general definition of “matter,”which includes “lobbying activity . . .except as expressly limited in a particularrule,” and the current formulation of Rule1.7(b)(1), which applies only to a “matterinvolv[ing] a specific party or parties.”

The Peters Committee explained that ithad “attempted to fashion in amendedRule 1.7 detailed, ‘black letter’ guidanceto the Bar regarding conflicts of interest.”Peters Report at 11. The Committee lim-ited Rule 1.7(b)(1) to matters involvingspecific parties because “it is not practi-cal—and may well harm the interests of anew client—for a lawyer asked to repre-sent that client in lobbying activities totake affirmative steps to obtain disclosurefrom other clients as to whether theyhave (or will have) an adverse position inthe matter.” Peters Report at 18.

Accordingly, the Committee has limitedthe obligations set out in Rule 1.7(b)(l)to situations involving “a specific partyor parties.” Because situations that mayarise under Rule 1.7(b)(l) are numerous,the Committee has not attempted todefine those matters that involve “a spe-cific party or parties,” but has left thatdefinition to case-by-case development.

Id.This bright line rule eliminates the

need for lawyer-lobbyists to look to Rule1.7(b)(1) for guidance on conflicts in lob-bying matters. However, they must stillconsider potential conflicts under subsec-tions (b)(2), (b)(3) and (b)(4). Such con-flicts may exist when they know thatanother client strenuously objects to or

will be seriously harmed by a lobbyingresult they are hired to pursue.

2. Rule 1.7(b)(2), (b)(3) and (b)(4)—Waivable Conflicts Rules That DoApply to Lobbying Matters

Rules 1.7(b)(2), (b)(3) and (b)(4) doapply to lobbying activities because,unlike Rule 1.7(b)(1), they contain nolanguage that clearly limits their scope toadjudications and other discrete and iso-latable transactions between identifiablepersons. Rules 1.7(b)(2) and (b)(3) aremirror images of each other. Under theformer, a lawyer may not represent aclient with respect to a matter (including“lobbying activity” under Rule 1.0(h)) if“such representation will be or is likely tobe adversely affected by representationof another client.” Under the latter, thelawyer may not undertake the representa-tion if “representation of another clientwill be or is likely to be adversely affect-ed by such representation.”

Rule 1.7(b)(4) looks beyond the poten-tial effects of one client representation onanother client representation. It asks if“the lawyer’s professional judgment onbehalf of the client will be or reasonablymay be adversely affected by the lawyer’sresponsibilities to or interests in a thirdparty or the lawyer’s own financial, busi-ness, property, or personal interest.”

Collectively, these three rules all applyto circumstances in which an objectiveobserver would doubt the lawyer’s incen-tive to be a zealous advocate. For thatreason, they are often referred to as the“punch-pulling” conflicts rules becausethe lawyer might be tempted to “pull herpunches” on behalf of one client so as notto harm the interests of another. D.C.Ethics Op. 309 (2001). Accord D.C.Ethics Op. 317 n.6 (2002).10

The Peters Report specifically identi-fied “punch-pulling” as a potential obsta-cle to a lobbying representation:

September 2008 THE DISTRICT OF COLUMBIA BAR 311

9As expressed in the recent amendment of the

federal regulations, “only those particular mattersthat involve a specific party or parties fall withinthe prohibition of section 207(a)(1). Such a mattertypically involves a specific proceeding affectingthe legal rights of the parties or an isolatable trans-action or related set of transactions between identi-fied parties, such as a specific contract, grant,license, product approval application, enforcementaction, administrative adjudication, or court case.”Federal Post-Employment Conflict of InterestRestrictions, 73 Fed. Reg. at 36,193 (to be codifiedat 5 C.F.R. § 2641.201(h)(1)).

10Comment [7] to Rule 1.7 explains:

The underlying premise is that disclosure andinformed consent are required before assum-ing a representation if there is any reason todoubt the lawyer’s ability to provide whole-hearted and zealous representation of a clientor if a client might reasonably consider therepresentation of its interests to be adverselyaffected by the lawyer’s assumption of theother representation in question. Althoughthe lawyer must be satisfied that the repre-sentation can be wholeheartedly and zealous-ly undertaken, if an objective observer wouldhave any reasonable doubt on that issue, theclient has a right to disclosure of all relevantconsiderations and the opportunity to be thejudge of its own interests.

[W]hile the Committee believed itappropriate to narrow Rule 1.7(b)(1),the Committee recommends no changeto Rules 1.7(b)(2) through 1.7(b)(4).Rule 1.7(b)(1) implements a generalduty of loyalty and, where it applies,prohibits representation whether or notthat representation would in fact haveany adverse impact on another client.The remainder of Rule 1.7(b), however,defines situations where the representa-tion of a client would likely be compro-mised by representation of anotherclient. If, for example, a lawyer knowsthat there is a risk that he or she would“pull punches” for client A in a lobbyingmatter to avoid angering large client Brepresented solely in a litigation matter,then representation of client A is notproper whether or not client B willappear in the lobbying matter.

Peters Report at 18.The inquiry before the Committee

does not supply enough information todetermine whether a “punch-pulling”issue exists here. Certainly, the lawyershould consider discussing with her lob-bying client (Client X) the fact that sheknows her other client (Client Y) will beharmed by the tax credit to be sought inthe lobbying. If the lawyer-lobbyist per-ceives a basis for a concern that her zeal-ousness on Client X’s behalf might beimpaired by her knowledge of Client Y’sposition, Rule 1.7(c) requires her to satis-fy herself that she can provide competentand diligent representation to X in thesecircumstances, and to obtain an informedconsent from X, the client whose repre-sentation might be affected by Y’sexpected involvement. In some cases, Y’sconsent might also be required becauseof a potential adverse effect of the pro-posed lobbying representation on theongoing representation of Y.11

3. Imputation of Conflicts of Interest

Under Rule 1.10, while lawyers areassociated in a law firm, none of themmay knowingly represent a client when

any one of them practicing alone wouldbe precluded from doing so by Rule 1.7.This rule imputing each lawyer’s con-flicts to all other lawyers in the firmapplies to lobbying representations andlobbyists employed by a law firm. How-ever, a conflict will not be imputed when“the prohibition of the individuallawyer’s representation is based on aninterest of the lawyer described in Rule1.7(b)(4) and that interest does not pres-ent a significant risk of adversely affect-ing the representation of the client by theremaining lawyers in the firm.” Rule1.10(a)(1).

II. Avoiding Application of the ConflictProvisions to Lobbying and Other“Law-Related Services”

Lawyers and law firms must take stepsto assure that the nonlawyers associatedwith them abide by the Rules of Profes-sional Conduct.12 Moreover, lawyersthemselves are governed by some of theRules of Professional Conduct evenwhen they act in a nonlawyer capacity.13

Because clients who procure legal ser-vices are entitled to certain protectionsthat do not typically apply to the provi-sion of nonlegal services (such as confi-dentiality and avoidance of conflicts), therules effectively require the lawyer toabide by all of the Rules of ProfessionalConduct, including the conflicts rules,when the client may reasonably believethat legal services are involved. Rule 5.7addresses these issues for lawyer-lobby-ists and their staff by setting forth alawyer’s “Responsibilities RegardingLaw-Related Services.”14

Despite the name, “law-related ser-vices” are not legal services. They are notlegal services because they “are not pro-hibited as unauthorized practice of lawwhen provided by a nonlawyer.” Rule 5.7(b). Such services are deemed to be “law-

related” because they “might reasonablybe performed in conjunction with and insubstance are related to the provision oflegal services.” Id.

The comments to Rule 5.7 identify“legislative lobbying” as a “law-relatedservice.” Rule 5.7, Comment [9]. Indeed,the reference to “legislative lobbying” inthe comments to Rule 5.7 played a cen-tral role in the UPL Committee’s conclu-sion that U.S. legislative lobbying doesnot involve the practice of law. See UPLOpinion at 3.15

When a lawyer or law firm providesboth legal and nonlegal services, there isa risk that the client will be confusedabout the protections to which the clientis entitled as part of the services. “Therecipient of the law-related services mayexpect, for example, that the protectionof client confidences, prohibitionsagainst representation of persons withconflicting interests, and obligations of alawyer to maintain professional inde-pendence apply to the provision of law-related services” when such is not thecase. Rule 5.7, Comment [1].

To protect such expectations, Rule5.7(a)(1) requires lawyers to abide by allof the Rules of Professional Conductwhen the “law-related services” are pro-vided “by the lawyer in circumstancesthat are not distinct from the lawyer’sprovision of legal services to clients.”Rule 5.7(a)(2) requires application of allof the Rules of Professional Conduct ifthe services are provided “in other cir-cumstances by an entity controlled by thelawyer individually or with others if thelawyer fails to take reasonable measuresto assure that [the recipient of the ser-vices] knows that the services are notlegal services and that the protections ofthe client-lawyer relationship do notexist.” (emphasis added).

“The burden is upon the lawyer toshow that the lawyer has taken responsi-ble measures under the circumstances tocommunicate the desired understanding.”Rule 5.7, Comment [7]. “A sophisticateduser of law-related services, such as a

312 THE DISTRICT OF COLUMBIA BAR September 2008

11While the notion of “punch-pulling” captures

most of the circumstances regulated by Rules1.7(b)(2) through (4), there may be others as well.One of these is a situation involving an “issue” or“positional conflict,” such that the lawyer’s effec-tiveness in a matter being handled for one clientwould be adversely affected by the result beingsought on behalf of another client as, “for example,when a decision favoring one client will create aprecedent likely to seriously weaken the positionbeing taken on behalf of the other client.” Rule 1.7,Comment [13]; D.C. Ethics Op. 265 (1996). Noth-ing in the pending inquiry suggests that the pro-posed lobbying representation seeking a tax creditimplicates any positional conflict issues.

12See Rule 5.1 (Responsibilities of Partners,

Managers, and Supervisory Lawyers); Rule 5.3(Responsibilities Regarding Nonlawyer Assis-tants); Rule 5.4(b) (requiring—as part of the Dis-trict of Columbia’s unique rule allowing nonlawyerpartners in law firms—that the nonlawyers abideby the Rules of Professional Conduct).

13For example, Rule 8.4(c) makes it profes-

sional misconduct to “engage in conduct involvingdishonesty, fraud, deceit, or misrepresentation.”Under that rule, “[a] lawyer is held to a high stan-dard of honesty, no matter what role the lawyer isfilling, acting as lawyer, testifying as a witness in aproceeding, handling fiduciary responsibilities, orconducting the private affairs of everyday life.” Inre Jackson, 650 A.2d 675, 677 (D.C. 1994).

14Rule 5.7 was added to the District of Colum-

bia’s Rules of Professional Conduct in 2007.

15We do not address whether and to what extent

lobbying services other than “U.S. legislative lob-bying”—as that phrase is used in the UPL Opin-ion—may qualify for treatment as a “law-relatedservice” for purposes of Rule 5.7. Since the defini-tion of “law-related service” requires a determina-tion that the service is “not prohibited as theunauthorized practice of law when provided by anonlawyer,” an essential predicate issue is outsidethe scope of our jurisdiction. See supra notes 1 & 2.

16See also Rule 5.7, Comment [8] (“Under

some circumstances the legal and law-related ser-vices may be so closely entwined that they cannot

publicly held corporation, may require alesser explanation than someone unac-customed to making distinctions betweenlegal services and law-related services,such as an individual. . . .” Id.16 When thelawyer has not severed the connection inthe client’s mind between the “legal” and“nonlegal” services, “the lawyer musttake special care to heed the proscrip-tions of the Rules addressing conflict ofinterest. . . .” Id., Comment [10] (empha-sis added).

One book describes Model Rule 5.7(the text of which is identical to D.C.Rule 5.7) as a way of “opting out” of theRules of Professional Conduct for lobby-ing matters.17 It warns that, “[f]or thelawyer-lobbyist who practices in a tradi-tional law firm setting and provides lob-bying services to his clients in thatsetting, it seems clear that the ModelRules would apply to that lawyer’s lob-bying activities.”18 We agree that the bur-den falls on the lawyer-lobbyist to showthat she has taken reasonable measuresunder the circumstances to communicateto the client that she is not acting as theclient’s lawyer.19 “The lawyer must alsotake ‘special care’ to keep the provisionof any legal services separate from thelaw-related services, in order to minimizethe risk of confusing the client.”20

Conclusion

Most of the conflict rules apply tolawyer-lobbyists engaged in lobbying.Lawyer-lobbyists in the District ofColumbia who hold themselves out aslawyers may not advance opposing posi-tions in the same lobbying matter evenwith consents from all of their lobbyingclients. Moreover, the lawyer-lobbyistmust also ensure that she is not placingherself in a position where she might

have to pull her punches on behalf of oneclient so as to protect the interests ofanother. Such conflicts can be waivedwith informed consent from the affectedclients, provided that the lawyer reason-ably believes that he or she can providecompetent and diligent representation.Absent special circumstances, all of theserestrictions also apply to other lobbyistsin the same law firm, even if those otherlobbyists are not themselves lawyers.

Lawyer-lobbyists are not, however,generally subject to Rule 1.7(b)(1) in theconduct of lobbying activities. This ruleis confined to “matter[s] involv[ing] aspecific party or parties,” a phrase thatexcludes lobbying, rulemaking and othermatters of general government policy. Asa result, Rule 1.7(b)(1) does not prohibita lawyer-lobbyist from advancing a posi-tion in a lobbying matter that may beopposed in that same lobbying matter byanother client of the lawyer-lobbyist (orof the lawyer-lobbyist’s law firm) wherethe other client is unrepresented in thelobbying matter or is represented by adifferent lobbyist who is not associatedwith the lawyer-lobbyist’s firm.

Finally, Rule 5.7 provides guidance forlawyers and law firms who wish to estab-lish a law-related lobbying practice thatis not governed by the conflicts provi-sions of the Rules of Professional Con-duct. To do so, however, the lobbyingclient must receive clear notice that theservices are not legal services and thatthe usual protections accompanying aclient-lawyer relationship do not apply.

Inquiry No. 07-12-21Published: July 2008

Opinion 345

Reimbursement of Interest ChargesIncurred When a Lawyer Uses theFirm’s Line of Credit to Advance theCosts of the Representation

• A lawyer who uses the firm’s line ofcredit to advance to a client the costs ofthe representation will incur interestcharges from the bank in doing so. Thelawyer may pass these costs along to theclient, so long as the client has been fullyinformed in advance of these charges, theclient has agreed to pay them, the costs arereasonable, and the lawyer maintains aseparate accounting of the interest chargesincurred for that client. Finally, the costsof the line of credit must be directly attrib-utable to the representation of that client;in other words, the lawyer may not passon to individual clients the costs of main-

taining a line of credit used to fund thefirm’s general overhead expenses.

Applicable Rules• Rule 1.5 (Fees)• Rule 1.8(d)

Inquiry

In a personal injury case, costs areincurred for copying, for ordering deposi-tion transcripts, for court costs, for expertwitnesses, and for similar disbursementsrelated to the prosecution of the case. Thefirm representing a party is contemplat-ing using the firm’s line of credit to payfor such costs, but it will have to pay thebank interest for doing so. The firm hasinquired whether it may pass on to theclient at the end of the case the chargesfor the interest incurred.

Discussion

There are two alternatives to this pro-posed arrangement: either the client willhave to pay for these disbursements asthey are incurred or the firm will have toabsorb these additional costs, likely pass-ing them on to all clients through increas-es in fees. If the client must pay theseexpenses, the client may have to borrowfunds to do so, in which case the clientwould pay interest charges directly. Rule1.8(d) allows lawyers to advance the costsof litigation to clients, but they are notrequired to do so. Thus, neither of thesealternatives is required by the Rules.

If a lawyer uses his or her credit line tooperate a law office or to fund normaloperating expenses, the lawyer cannotpass along the interest incurred to do soto individual clients. However, requiringa client to pay for the costs incurred inprosecuting his or her case is clearlyallowed by the Rules. Comment [2] toD.C. Rule 1.5 specifies that a lawyer mayseek payment from the client for expens-es including filing fees, copying costs,and transcript costs. D.C. Rule 1.5(b)provides that when a lawyer has not reg-ularly represented a client, these expens-es “shall be communicated to the client,in writing, before or within a reasonabletime after commencing the representa-tion.” By setting forth the charges forwhich the lawyer or his or her firm willseek payment by the client, the lawyerprovides the client with a clear under-standing of the lawyer’s costs and allowsfor discussion of these terms at the outsetof the attorney–client relationship.

Neither the Rules nor the Commentsspecifically mention reimbursement of

September 2008 THE DISTRICT OF COLUMBIA BAR 313

be distinguished from each other, and the require-ment of disclosure and consultation imposed byparagraph (a)(2) of the rule cannot be met. In sucha case a lawyer will be responsible for assuring thatboth the lawyer’s conduct and, to the extentrequired by Rule 5.3, that of nonlawyer employeesin the distinct entity that the lawyer controls com-plies in all respects with the Rules of ProfessionalConduct.”).

17Luneburg & Susman, supra note 6, § 27-

2.3.2, at 490. The cited edition of the book pre-dates the adoption in 2007 of Rule 5.7 by theDistrict of Columbia, a later event that supersedessome of the analysis in the current edition of thebook. See id. § 27-2.3.3, at 491.

18Id. at 490.

19Id. at 491.

20Id.

interest costs. Some threshold concernsabout seeking reimbursement of thesecharges from clients are not implicatedhere. For example, the inquirer hasalready specified that the firm will not bemaking a profit on the advancement of thepayments for costs incurred. Rather, it willseek only to recover the costs of the inter-est the bank will charge the firm for usingthe firm’s line of credit to cover them.

This inquiry raises competing inter-ests. On the one hand, allowing lawyersto pass on the carrying costs of suchcharges to individual clients ensures thatthe firm’s other clients are not payingthese charges through increased fees. Onthe other hand, since many firms andlawyers maintain lines of credit to sup-port their practices, it is not appropriatefor some of a lawyer’s clients to bearindirectly certain overhead expenses thatappropriately should be absorbed by thelawyer or spread fairly among all thelawyer’s clients.

Because a lawyer may only charge theclient the amount of interest directlyattributable to that client’s case, thelawyer must maintain detailed accountsof the amount of any advance and theinterest charged by the lender and attrib-utable to the client’s costs. Although notrequired by the Rules, a lawyer may wishto maintain a line of credit for theadvancement of such costs that is sepa-rate and apart from the line of credit onwhich the lawyer regularly draws for pur-poses of paying overhead expenses.

In addition, any interest charged to theclient must be reasonable, and the lawyer“will have the burden of establishing thereasonableness” of such charges. More-over, it is clearly improper for a lawyer topass onto the client any late fees oraccount maintenance costs that result fromthe lawyer’s inefficient or imprudentfinancial management of the line of credit.

Finally, any fee agreement with a clientthat would include interest costs shouldbe made at the beginning of the represen-tation. In Opinion 310, the Committeereviewed the question whether a lawyercould charge interest on its fees if theclient did not pay them promptly. SeeD.C. Ethics Op. 310 (2002). The Com-mittee noted that the payment of interestresulted in charges only to the clientdirectly affected and thus allowed thelawyer to avoid “upward fee pressures”caused by spreading the additional costsassociated with late payment of fees to allof his or her clients. In that Opinion, theCommittee noted that changing the feeagreement in an ongoing representation inorder to include these charges is subject to

“strict scrutiny” because of the possibilityof “overreaching” by the lawyer. Id. (cit-ing Chase v. Gilbert, 499 A.2d 1203, 1209(D.C. 1985)) (“What may constitute over-reaching in particular circumstances is ofcourse dependent on such factors as theresources and sophistication of the client,the presence or absence of such externalfactors as a favorable litigation schedulethat would be lost if the client had tochange counsel, and so on.”). So, wherev-er possible, the lawyer should specify atthe outset of the representation that,should it be necessary for the lawyer todraw on a line of credit to pay for litiga-tion expenses, the client is responsible forthe applicable interest charges.

Published: July 2008

Opinion No. 346

The Required Elements for Triggeringa Duty of Confidentiality to aProspective Client

• When a lawyer, with whom aprospective client has consulted, receivespermission from the prospective client tospeak with other counsel who the lawyerbelieves may be better suited to handlethe case, any client information conveyedby the first lawyer during such a discus-sion with the second lawyer should betreated by the second lawyer as confiden-tial, even though he never speaks directlywith the prospective client.

Applicable Rules• Rule 1.6 (Confidentiality of Infor-

mation)• Rule 1.18 (Duties to Prospective

Client)

Inquiry

A would-be client comes to Lawyer Ato speak with her about taking on hiscase. After listening to the prospectiveclient’s story, Lawyer A determines thatshe is not in a position to be of assistance.However, Lawyer A believes that a dif-ferent lawyer would be better suited tomeet the prospective client’s needs.Lawyer A asks the prospective clientwhether he would like her to call LawyerB on his behalf to discuss the possibilityof Lawyer B taking on the representation,and the prospective client says “yes.”Lawyer A calls Lawyer B, who works ata different firm, and explains the person’spredicament. After hearing the story fromLawyer A, Lawyer B determines that hehas a conflict of interest and cannot rep-

resent the person. The question iswhether Lawyer B has a duty to safe-guard the information that Lawyer Acommunicated to him.

D.C. Rule 1.18, which became effec-tive February 2007, defines a lawyer’sobligations to a person with whom alawyer discusses the possibility of repre-sentation, but who does not become thelawyer’s client. The rule recognizes anew category of persons, “prospectiveclients,” and states that “[e]ven when noclient–lawyer relationship ensues, alawyer who has had discussions with aprospective client shall not use or revealinformation learned in the consultation,except as permitted by Rule 1.6.”(Emphasis added). The uncertainty in thisinquiry arises because Lawyer B neverhad direct “discussions with a prospec-tive client.” His only discussions werewith Lawyer A.

Discussion

We analyze this inquiry under two alter-nate theories: (1) That the duty of confi-dentiality to would-be clients exists in Rule1.6 and, therefore, is not dependent on thedefinition of a “prospective client” in Rule1.18; and (2) the requirement of a discus-sion in Rule 1.18 is met because Lawyer Ais an agent of the prospective client. Webelieve that under both theories, Lawyer Bowes a duty of confidentiality.1

1. Confidentiality to Would-Be ClientsUnder Rule 1.6

ABA Model Rule 1.18 was adopted in2002 as part of the ABA Ethics 2000 proj-ect. D.C. Rule 1.18(a), which is identicalto Model Rule 1.18(a), provides: “A per-son who discusses with a lawyer the pos-sibility of forming a client–lawyerrelationship with respect to a matter is aprospective client.” The confidentialitycomponent of the rule (as distinct from itsprovision relating to conflicts of interest)was intended to codify the existing obli-gation of a lawyer under Model Rule 1.6to a person with whom the lawyer had apreliminary consultation of some sort, butwho never entered into an attorney–clientrelationship.2 Indeed, ABA Ethics Opin-ion No. 90-358, written 12 years before

314 THE DISTRICT OF COLUMBIA BAR May 2009

1Under either theory, the substance of the duty

of confidentiality is governed by Rule 1.6.

2What is substantively new in Model Rule 1.18

is that a lawyer’s duties to prospective clients withrespect to conflicts of interest are defined. Beforethe new rule, courts were left to determine whetherone or more consultations created an attorney–clientrelationship or no relationship at all. See

the adoption of Rule 1.18, states:

Information imparted from a would-beclient seeking legal representation isprotected from revelation or use underModel Rule 1.6 even though the lawyerdoes not undertake representation of orperform work for the would-be client.

Similarly, Comment [9] to D.C. Rule1.6 recognizes this obligation under D.C.Rule 1.6. The Comment states:

Principles of substantive law external tothese Rules determine whether aclient–lawyer relationship exists.Although most of the duties flowingfrom the client–lawyer relationshipattach only after the client has requestedthe lawyer to render legal services andthe lawyer has agreed to do so, the dutyof confidentiality imposed by this ruleattaches when the lawyer agrees to con-sider whether a client–lawyer relation-ship shall be established. Other duties ofa lawyer to a prospective client are setforth in Rule 1.18. (Emphasis added.)

See also Restatement (Third) of theLaw Governing Lawyers § 15.

Because the duty of confidentialityowed to persons who do not becomeclients exists in Rule 1.6 and in Rule1.18, we need not rely solely on the lan-guage of Rule 1.18, which requires a dis-cussion between a person and a lawyer.Comment [9] to D.C. Rule 1.6 clarifiesthat the duty of confidentiality is trig-gered “when [a] lawyer agrees to consid-er whether a client-lawyer relationshipshall be established.”3

The Committee concludes, therefore,that a duty of confidentiality is owed bythe second lawyer under Rule 1.6,notwithstanding the language of Rule1.18, because the second lawyer presum-ably agreed to consider the possibility ofa client–lawyer relationship when hespoke with the first lawyer.

2. Communications From Agents ofClients

Alternatively, we assume for purposesof further analysis that the requirement of

a discussion with the would-be client, asstated in Rule 1.18(a), must be met inorder for the duty of confidentiality toattach. Under that assumption, therequirement would be met if the firstlawyer was considered to be the agent ofthe would-be client in speaking with thesecond lawyer.

In assessing the confidentiality ofcommunications with clients in connec-tion with the attorney–client privilege,courts have often recognized that clientssometimes speak to their lawyer throughagents.4 This can include interpreters,family members, and business agents,provided that under the circumstances,the agent is someone who the client truststo maintain the confidentiality of thecommunications. This concept is recog-nized in the Restatement (Third) of TheLaw Governing Lawyers § 70(f). Underthat section, the Restatement addressesthe circumstances under which a personcan speak to a lawyer as a client’s agentand have the communication fall withinthe attorney–client privilege. That sectionstates:

A client’s agent for communication. Aperson is a confidential agent for com-munication if the person’s participationis reasonably necessary to facilitate theclient’s communication with a lawyer oranother privileged person and if theclient reasonably believes that the per-son will hold the communication in con-fidence. Factors that may be relevant indetermining whether a third person is anagent for communication include thecustomary relationship between theclient and the asserted agent, the natureof the communication, and the client’sneed for the third person’s presence tocommunicate effectively with thelawyer or to understand and act upon thelawyer’s advice.

The Restatement provides three illus-trations: (1) A client is arrested andbarred from speaking to his counsel andso asks his friend to convey a message tohis lawyer; (2) a client does not speakEnglish and uses an interpreter to speakto the lawyer; and (3) a client uses hispersonal secretary to provide informationto his lawyer.

In In Re Lindsay, 158 F.3d 1263, cert.denied, 525 U.S. 996 (1998), the D.C.Circuit addressed whether Deputy WhiteHouse Counsel Bruce Lindsay acted as

President Clinton’s agent in speakingwith the President’s private counselregarding the president’s personal legalissues. The court did not decide whetherthe use of an agent as intermediary needbe “reasonably necessary” in order toretain the privilege because it found thatby adding his own legal analysis, Mr.Lindsay could not be deemed a mereintermediary. In rejecting the privilegeunder these circumstances, the court rea-soned that “the attorney–client privilegemust be ‘strictly confined within the nar-rowest possible limits consistent with thelogic of its principle.’” Id. at 1281 (quot-ing In Re Sealed Case, 676 F.2d 793, 807n.44 (D.C. Cir. 1982)) (quoting In ReGrand Jury Investigation, 599 F.2d 1224,1235 (3d Cir. 1979)).

We believe that the intermediary prin-ciple applies to a lawyer’s ethical obliga-tion of confidentiality under Rule 1.6 andRule 1.18 as well, but without the sameneed to so strictly limit its applicability.The reason for the distinction is that inthe context of attorney–client privilege,as with any evidentiary privilege, there isthe important countervailing demandfrom a party in a legal proceeding for evi-dence which may be relevant. Unlessapplying an exception under Rule 1.6 (c),(d), and (e), a lawyer’s duty of confiden-tiality, on the other hand, should bebroadly interpreted in order to ensure thatclient expectations are met. See GeoffreyC. Hazard, Jr. and W. William Hodes, TheLaw of Lawyering § 9.7 (3d ed.) stating:

Because the ethical obligation of confi-dentiality is broader [than the attorney-client privilege], lawyers ordinarilyshould operate on the presumption thatessentially no unfavorable client infor-mation may be disclosed without theclient’s consent.

Because the first lawyer was an agentof the prospective client, the secondlawyer must treat the discussion with thefirst lawyer as confidential under Rule1.18.

Conclusion

When a prospective client consents tohaving a lawyer speak to a second lawyeron his behalf regarding the possibility ofestablishing an attorney–client relation-ship, the second lawyer has an obligationunder Rules 1.6 and 1.18 to treat the com-munication as confidential, even if thesecond lawyer never speaks directly withthe prospective client.

Given the importance of maintainingconfidentiality of any informationreceived by the first lawyer, it is advis-

May 2009 THE DISTRICT OF COLUMBIA BAR 315

Derrickson v. Derrickson, 541 A.2d 149 (D.C.1988), in which the court, in ruling on a motion todisqualify a party’s counsel, had to determinewhether a single consultation of about one hour,taking place eight years earlier and which thelawyer contended he had no recollection of, creat-ed a lawyer–client relationship. The court found noattorney–client relationship and, therefore, no con-flict of interest.

3Whether that formulation also triggers the con-

flict of interest features of Rule 1.18(c) is a separatequestion not addressed in this Opinion.

4The more common situation of nonlawyers

who are assisting the lawyer serving as the lawyer’sagent in receiving confidential communicationsfrom a client is also a related but separate issue, notaddressed in this Opinion.

able that the first lawyer disclose at theoutset of the conversation with the sec-ond lawyer that the purpose of the dis-cussion is to consider taking on a newcase for someone, and to limit initial dis-closures to the essential facts until it canbe determined whether the second lawyerhas a conflict of interest.

Published: February 2009

Opinion 347

Reverse Contingent Fees

• A reverse contingent fee is a fee thatis based upon the difference betweenthe amount a third party demands froma lawyer’s client, and the amount ulti-mately obtained from the client,whether by settlement or judgment. TheRules of Professional Conduct (Rules)do not prohibit reverse contingent fees,and a fee arrangement of this naturemay align the lawyer’s and client’sinterests more closely than hourly orfixed fee arrangements. Like all fees,reverse contingent fees must be reason-able. Beyond the requirement of reason-ableness, entering into a reversecontingent fee arrangement placesincreased burdens of disclosure on thelawyer in order to obtain informed con-sent to such a fee arrangement. Thelawyer is in a better position to assessthe likely outcome of a dispute than aclient is, and the lawyer must fully andfairly communicate that assessment tothe client in any discussion concerninga reverse contingent fee. In addition, alawyer should take particular care insetting the percentage of the reversecontingent fee, because unlike contin-gent fees based upon a client’s recovery,there is little established practice uponwhich a client and lawyer can rely.Finally, as with other Rule provisions,the degree and nature of the disclosurerequired of the lawyer and the ensuingscrutiny of the fee arrangement mayvary based upon the experience andsophistication of the client.

Applicable Rules• Rule 1.5 (Fees)

Inquiry

The inquiry is whether, and under whatcircumstances, a reverse contingent feei.e., a fee computed based upon the sav-ings to a client, rather than the client’srecovery, comports with the Rules of Pro-fessional Conduct.

Background and Discussion

Rule 1.5 governs the fees charged bylawyers. Rule 1.5(a) mandates that feesbe reasonable and sets forth eight factorsto be considered in assessing the reason-ableness of a fee. Reasonableness isassessed based on the facts and circum-stances of the representation, as theyexist both at the beginning and the end ofthe representation. “A fee that looked tobe reasonable at the outset of the repre-sentation may have become excessive asmeasured by the outcome of the client’scase.” Contingent Fees, ABA/BNALawyers’ Manual on Professional Con-duct, 41:901, at 18 (2004).

Rule 1.5 discusses when contingentfees are and are not permissible, but itdoes not directly address “reverse contin-gent fees.” Rule 1.5(c) allows fees “con-tingent upon the outcome of the matterfor which service is rendered.” Comment[6] to the Rule states that “[g]enerally,contingent fees are permissible in all civilcases.” Contingent fee agreements mustbe in writing and must “state the methodby which the fee is to be determined,including the percentage or percentagesthat shall accrue to the lawyer.” Com-ment [7] to Rule 1.5 provides a cautionwith regard to domestic relations cases:“[c]ontingent fees in domestic relationscases, while rarely justified, are not pro-hibited by Rule 1.5.” Such fees in domes-tic relations matters are “permitted inorder that lawyers may provide represen-tation to clients who might not otherwisebe able to afford to contract for the pay-ment of fees on a noncontingent basis.”The only outright prohibition of contin-gent fees in Rule 1.5 is limited to repre-sentations of defendants in criminalcases.1

Rule 1.5 appears to contemplate onlythe standard contingent fee arrangement(i.e., where a recovery is generated forthe client) rather than a reverse contin-gent fee. Rule 1.5(c) provides that a con-tingent fee agreement must address“expenses to be deducted from the recov-ery.” (emphasis added). Comment [8]requires a lawyer to “provide the clientwith a written statement at the conclusionof a contingent fee matter, stating the out-come of the matter and explaining thecomputation of any remittance made to

the client.” (emphasis added).We have addressed contingent fees in a

number of prior Opinions.2 None of theseprior Opinions discuss reverse contingentfees. Like Rule 1.5, these Opinions con-sider the typical contingent fee where thelawyer is “‘produc[ing] a res with whichto pay the fee.’” D.C. Ethics Op. 262(1995) (quoting Code of ProfessionalResponsibility Ethical Consideration 2-20, which discussed the basis for pro-hibiting contingent fees in criminalrepresentations).

Outside of the District of Columbia,reverse contingent fees have beenaddressed by a number of jurisdictions.In Formal Opinion 93-373 (1993), theABA concluded that “[t]he Model Rulesdo not prohibit ‘reverse’ contingent feeagreements for representations of defen-dants in civil cases where the contin-gency rests on the amount of money, ifany, saved the client, provided theamount saved is reasonably deter-minable, the fee is reasonable in amountunder the circumstances, and the client’sagreement to the fee arrangement is fullyinformed.”

The ABA identified several significantdifferences between typical, recovery-based contingent fees and reverse contin-gent fees. First, while the setting ofpercentages in typical contingent feecases is susceptible to abuse or over-reaching by the lawyer, the “profession’slong experience with straight contingentfees and the active regulation by thecourts and the legislatures” have “prettywell established” the “range of reason-able percentages.” For reverse contingentfees, reasonableness “will not be so read-ily determinable.” The legal profession“has not built up a long term commonexperience with the concept. The fact thatstraight contingent fees typically rangefrom 25% to 33% does not necessarilymean that the same percentage is reason-ably applied to the potential savings of adefendant.” Second, even if a fair per-centage can be set, reverse contingencyfees have the added complication of cal-

316 THE DISTRICT OF COLUMBIA BAR May 2009

1Substantive law may restrict those matters in

which a reverse contingency fee is permitted. See,e.g., 31 C.F.R. § 10.27 (IRS regulation prohibitingreverse contingent fee for preparation of a taxreturn but permitting such fee under other circum-stances). This opinion does not purport to addressany additional conditions or restrictions imposedby substantive law on reverse contingent fees.

2D.C. Ethics Ops. 29 (1977) (Change in Con-

tingent Fee Arrangement In Course of Representa-tion); 37 (1977) (Provisions of Contingent FeeRetainer Agreements With Respect to Payment of aFee in the Event of Discharge or Withdrawal of theAttorney); 42 (1977) (Written Retainer AgreementBased on Combination of Contingent Fee PlusTime Charges); 115 (1982) (Propriety of Contin-gent Fees In Non-Litigation Matters); 161 (1985)(Contingency Fees in Child Support Cases); 208(1989) (Calculation of Attorneys Fees in StructuredSettlements); 262 (1995) (Application of Rule1.5(d) to Receipt of a Contingent Fee in a Writ ofError Coram Nobis Proceeding).

culating the amount saved the client. Aplaintiff’s demand may be overstated ornot specifically enumerated; thus, “theamount demanded cannot automaticallybe the number from which saving result-ing from a judgment or settlement canreasonably be calculated.” ABA FormalOp. 93-373 (1993).

While not leading it to conclude thatreverse contingency fee arrangementswere unethical, the ABA determined thatthe above considerations require that thelawyer exercise greater care and consul-tation than in the typical “straight” con-tingency fee case. A lawyer must “fairlyevaluate the plaintiff’s claim and set areasonable number as the amount fromwhich the plaintiff’s recovery will besubtracted to determine the defendant’ssavings.” The lawyer has the burden of“demonstrating fairness in this process,”a burden that is significantly greaterwhen negotiating with an unsophisticatedclient than it is when dealing with, forinstance, an organization represented byan experienced in-house counsel.

The cases and other authorities consid-ering reverse contingency fees are gener-ally consistent with the ABA’s approach.In Ethics Opinion E-359 (1993), the Ken-tucky Bar Association stated that it is per-missible for a defense lawyer to charge areverse contingent fee in a civil case butnoted that the lawyer bears “the burdenof proving that the method of computingthe charge, and the amount of the fee, arereasonable and rational under the circum-stances.” In Ethics Opinion 98-03 (1998),the Iowa Supreme Court Board of Pro-fessional Ethics and Conduct approved areverse contingent fee because the dam-ages sought from the lawyer’s client wereliquidated and readily determinable. Seealso Pennsylvania Bar Association Com-mittee on Legal Ethics and ProfessionalResponsibility Informal Opinion 92-76(1992) (approving use of reverse contin-gent fee in tax appeal). In Wunschel LawFirm v. Clabaugh, 291 N.W.2d 331 (Iowa1980), the court invalidated a reversecontingent fee because it was based uponthe plaintiff’s damages demand in adefamation suit. While noting “nothing inthe nature of [a contingent fee] contractlimits its use to employment by plain-tiffs,” it rejected “a contingent defensefee predicated on a percentage of theamount saved under the prayer in defend-ing an unliquidated tort claim.” Id. at333.

The case of Brown & Sturm v. Freder-ick Road L.P., 768 A.2d 62 (Md. Ct.Spec. App. 2001) illustrates the potentialfor abuse in reverse contingent fee cases.

In that case, the underlying representa-tion concerned the value of a familyfarm. The clients requested an hourly feearrangement but the lawyers insisted on areverse contingency fee. The InternalRevenue Service (IRS) assessed theproperty at $60 million. While negotiat-ing the fee agreement with their clients(the individuals who had inherited thefarm), the lawyers knew that the IRSassessment was inflated, “more than dou-ble any other contemporaneous appraisalof the property.” Id. at 76. The attorneysconcealed from their clients appraisalsthat depicted “a more realistic worst-casemarket value” and entered into a reversecontingent fee contract with their clientsbased upon the inflated $60 millionappraisal. The underlying litigation withthe IRS was settled prior to trial, based ona $20 million valuation. Under the feeagreement, the attorneys claimed a $40million “savings” and charged the clients$4.8 million in fees. The Court of SpecialAppeals upheld findings that the attor-neys’ failure to disclose to their clientswhat they knew about the property’s networth made their fee agreement unen-forceable. The court also upheld a findingthat the fee “was unreasonable because itbore little relation to time, labor, noveltyand risk of the legal problem.” Id. at 81.

Conclusion

Consistent with ABA Formal Opinion93-373 and other authorities discussedabove, we conclude that reverse contin-gency fee agreements are not unethical.Indeed, in the appropriate instance, sucharrangements “may be in the best interestsof the clients.” ABA Formal Opinion 93-373 (1993). Unlike a typical fixed fee orhourly arrangement, under a reverse con-tingency arrangement, the lawyer could“receive no fee if not successful in savingthe client money.” Id. Like any other fee,a reverse contingent fee must be reason-able, as judged both at the outset and theconclusion of the representation. Areverse contingent fee arrangement mustalso be reflected in a written fee agree-ment under Rule 1.5(c), and such feeagreement must state the “method bywhich the fee is to be determined.”

The key components of a reverse con-tingency fee arrangement are (a) theselection of the sum or amount fromwhich a client’s savings are computedand (b) the percentage to be applied tosuch savings to produce the lawyer’s fee.The selection of the former should be theproduct of full disclosure by the lawyerand informed consent by the client. The

lawyer may not suggest a number basedupon an assessment of the matter orexperience in the particular type of dis-pute that is not disclosed to the client. Alawyer whose experience and knowledgeprovide insight into the range of resultsthat are typically achieved in a particulartype of matter must share such insightwith the client. The amount demanded byan adversary may not be taken alone asthe basis for a reverse contingent fee.Following such a course would be highlyproblematic. Instead, to the extent ademand is used by an attorney as thebasis for a contingent fee, the lawyershould perform his or her own independ-ent analysis and thoroughly discuss thematter with the client.

The percentage to be applied to thesavings obtained by the lawyer must sim-ilarly be the product of full disclosure bythe lawyer and informed consent by theclient. Unlike typical contingent feearrangements, there are no establishednorms concerning the appropriate per-centages for a lawyer to use. It is beyondthe expertise of this Committee to opineabout the percentages, or range of per-centages, that might be appropriate. Tosupport the reasonableness of a particularpercentage, the lawyer should considerdiscussing with the client the likely rangeof fees under hourly or fixed fee arrange-ments as compared to the range of feesthat might result from a reverse contin-gent fee arrangement.

The lawyer should summarize for theclient, preferably in writing, the analysisunderlying the sum or amount fromwhich a client’s savings are computedand the percentage to be applied to pro-duce the lawyer’s fee. Particularly whenit is the lawyer and not the client whosuggests the reverse contingent fee, aprudent lawyer will recognize that a writ-ing will facilitate review of the reason-ableness of the fee and of the client’sinformed consent to the fee arrangement.A lawyer may also find it advisable todocument any offer to accept a fixed orhourly fee arrangement as an alternativeto a reverse contingency fee arrangement.

The sophistication and experience ofthe client is an important factor to be con-sidered by the lawyer in discussing andreaching a reverse contingent fee arrange-ment. The type of discussion and disclo-sure that are required when the client is asophisticated in-house attorney for a largecorporation is different from thoserequired when the client is unsophisticat-ed and is not being advised by independ-ent counsel. See Comment [2] to Rule 1.0(assessing adequacy of disclosure to

May 2009 THE DISTRICT OF COLUMBIA BAR 317

obtain informed consent in light ofclient’s sophistication in legal matters).To the extent that a reverse contingent feearrangement is with a sophisticatedclient, who has the benefit of independentlegal advice and who provides the lawyerwith suggested figures and percentages tobase the fee arrangement upon, many ofthe above disclosures and discussionsmay not be necessary. On the other hand,with respect to an unsophisticated client,the lawyer should be assured before pro-ceeding with the representation that theclient has a full understanding of theamount from which the client’s savingswould be computed and the percentage tobe applied to that amount to produce thelawyer’s fee.

The partial dissent of our colleaguesreflects a disagreement over the relative-ly narrow issue of whether a lawyer vio-lates Rule 1.5 by failing to provide theclient a writing that sets forth thelawyer’s analysis or explanation of thecomponents of a reverse contingent fee.Our view is that such a writing is prefer-able, but not required. The partial dissentconcludes that Rule 1.5(c) mandates awriting containing such analysis orexplanation. In reaching a different con-clusion than our colleagues, we are mind-ful that our role is to interpret the Rulesas we find them, not to revise them as ifwe were starting anew.

We believe that a writing containing thelawyer’s analysis of the sum or amountfrom which the savings are to be comput-ed and the percentage to be applied to suchsum or amount is not required by Rule 1.5for three reasons. First, as outlined previ-ously in this opinion, Rule 1.5 was notdrafted with reverse contingent fees inmind. The Rule speaks of “expenses to bededucted from the recovery” and “remit-tance[s] made to the client.” Rule 1.5(c) &Comment [8]. We find no indication thatreverse contingent fees were contemplatedby the drafters of Rule 1.5.

Second, we do not believe that Rule1.5(c)’s requirement that the “method” bywhich a contingent fee is to be deter-mined be set forth in writing mandatesanything more than providing the arith-metic components of the reverse contin-gent fee. “Method” is a “means” or a“manner of procedure,” especially,according to one dictionary, “a regularand systematic way of accomplishinganything.”3 The term does not mean anexplanation of how or why one decidedto employ that particular method or

process. The method used to calculate therelationship between the sides of a righttriangle and its hypotenuse is thePythagorean theorem. How Pythagorasarrived at that method is another matter.

Finally, Rule 1.5(c) speaks of themethod “by which the fee is to be deter-mined…” (emphasis added). In otherwords, the phrase refers to something thatis going to happen in the future, i.e., howthe fee will be calculated in the futurewhen the case is resolved. Future-lookinglanguage does not encompass somethingthat has already occurred. It cannotinclude the analysis that the lawyer wentthrough in the past in order to propose aparticular fee arrangement.

Partially Dissenting Opinion

While we agree with most of the Com-mittee’s opinion, we disagree on onesmall but significant point, namely whatmust go into the written fee agreementestablishing a reverse contingent fee. Onthis point, we dissent because we believethat the Committee’s opinion does notadequately protect unsophisticatedclients. Adequate protection requires thatthe written agreement state not only thepercentage the lawyer will receive of theamount saved, and the baseline valueagainst which savings are calculated, butalso the lawyer’s analysis of how he orshe came up with the baseline. The opin-ion correctly notes that, typically, thebaseline cannot simply be the amountdemanded in the adversary’s complaint,which is likely to be inflated. Rather, itrepresents an analysis and estimate of theclient’s exposure.4 We believe that Rule1.5(c) requires a written explanation,however brief, of how the lawyer andclient arrived at such estimate. By con-trast, the Committee’s opinion requiresan oral explanation to the client, butmakes the writing optional.

First, let us note common ground withthe Committee’s opinion. A reverse con-tingency fee may be to the client’s advan-tage, and we agree with the Committeethat the Rules of Professional Conductpermit reverse contingency fees. We also

agree that the Rules require the lawyer toexplain the reverse contingent fee thor-oughly enough to obtain the client’sinformed consent to the arrangement. Asthe opinion notes, this oral explanationmust include both a discussion of theapplicable percentage used to computethe fee and the lawyer’s analysis of thebaseline value of the case against whichsavings are calculated. The point of con-tention lies in a single sentence, and infact a single word. The opinion states,“The lawyer should summarize for theclient, preferably in writing, the analysisunderlying the sum or amount from whicha client’s savings are computed and thepercentage to be applied to produce thelawyer’s fee.” (emphasis added). Theword “preferably” means that the lawyeris not strictly required to put his or heroral analysis of the baseline value intowriting. We disagree, and would notweaken Rule 1.5(c)’s writing requirementby making this analysis optional.

In a “straight” contingent fee, there isno uncertainty about the amount to whichthe percentage is applied: the res is whatit is. In the reverse contingent fee, howev-er, the baseline value is inherently inde-terminate. We do not mean merely that itcan never be better than a rough ballparkestimate of the client’s exposure, whichmight turn out to be completely wrong.The inevitable uncertainty of the estimateshould be clear—if not, it is the lawyer’sjob to make it clear—and it is a risk thatboth lawyer and client assume when theyagree to a reverse contingent fee.5 Theadditional problem is knowing what thelawyer is trying to estimate. Is the lawyerestimating the settlement value of thecase, or the unlikely worst-case scenarioif it goes to trial and they lose badly, or themost likely trial outcome? These may bemany thousands of dollars apart. TheCommittee’s opinion correctly notes thatthe lawyer has to explain to the client, atleast orally, “the analysis underlying…thesum or amount from which a client’s sav-ings are computed.” Surely, that includesexplaining the measure of exposure thelawyer is using. At the bare minimum,therefore, the lawyer has to tell the clientwhether the proposed baseline value rep-resents an estimate of the worst-case sce-nario, the most likely outcome, or

318 THE DISTRICT OF COLUMBIA BAR May 2009

3The American Heritage Directory of the Eng-

lish Language 857 (3d ed. 1993).

4It is possible that the proposed baseline does

not represent an estimate of potential exposure atall, but is simply an arbitrary number. In effect, thelawyer makes a sporting proposition to the client:“If I can save you money below $X, I get Y% of it;if I cannot, you owe me nothing.” Whether a feeagreement that, in effect, sets the lawyer’s fee by agame of chance can be “reasonable” under Rule1.5(a) is a question that we do not address here. Wesimply assume that the baseline value of the caserepresents a ballpark estimate of the client’s expo-sure.

5The lawyer’s risk is that the case is shakier and

more difficult than she had anticipated, so that sheputs in many hours for a small fee because she isunable to save much money below the agreed-uponbaseline. The client’s risk is the opposite: the caseturns out to be unexpectedly easy, it settles for asmall amount of money, and the client pays a largefee for very few lawyer hours.

something entirely different. Otherwise,the client might agree to a high baselinethat really represents an unlikely worstcase, without understanding how unlikelyit is. A lawyer who withholds that infor-mation has not met the minimum disclo-sure requirement under Rule 1.4(b). Theclient might wind up paying an inflatedfee under a misapprehension that animprobable million-dollar judgmentagainst him is really a significant risk.

Complicated information like this ishard to take in for an unsophisticatedclient. If the lawyer does not put it inwriting, unsophisticated clients will haveto trust their memory of a conversationabout something out of their ordinaryexperience. Six months or two yearslater, a client with doubts about the billwill have nothing to talk over with thelawyer except that memory. If worstcomes to worst and the client wants tochallenge the reasonableness of the fee,he has nothing beyond his memory, andhis possibly garbled understanding ofwhat the lawyer told him many moonsago, to go on. That is unfair to the unso-phisticated client. It puts that client at adisadvantage.

We believe that both the letter and thepolicy of Rule 1.5(c) require putting theanalysis leading to the baseline in writing.

The text of Rule 1.5(c) is clear:

“A contingent fee agreement shall be inwriting and shall state the method bywhich the fee is to be determined,including the percentage or percentagesthat shall accrue to the lawyer in theevent of settlement, trial, or appeal, liti-gation, other expenses to be deductedfrom the recovery, whether such expens-es are to be deducted before or after thecontingent fee is calculated, and whetherthe client will be liable for expensesregardless of the outcome of the matter.”(emphasis added).

In a straight contingent fee, the Rule istraditionally understood to require onlythat the terms of the agreement be inwriting. But the Rule does not actuallysay that. It says to put the “method bywhich the fee is to be determined” inwriting. In a straight contingent fee,which has a hundred-year-old tradition,the “method” does not need more expla-nation than specifying the percentagesand how the expenses are handled. Thatis not true with the reverse contingentfee. The reverse contingent fee is a rela-tively unfamiliar device. It has two vari-ables that are both “soft” and unsettledby tradition: the percentage and thebaseline.

If Rule 1.5(c) really meant that the per-centage and expense arrangements arethe only things that have to go in the feeagreement, it would have omitted thewords “…the method by which the fee isto be determined, including….” We takeit that those words are not surplus. Theplain meaning of the Rule is that the writ-ten agreement must include the percent-age and the expense arrangements, butnot that those are the only items neededto state the method by which the fee is tobe determined. An unfamiliar feearrangement calls for more informationin writing. The question is what this“more” includes, in a species of contin-gent fee that the Rule’s drafters neverthought about.

The Committee relies on the diction-ary definition of “method” and the gram-mar of the phrase “method by which thefee is to be determined.” We are skepti-cal that any substantive conclusions canbe derived this way.6 From the dictionarywe learn that a “method” involves regu-larity. We agree. The first step of thisregular method consists of estimating (orguesstimating) the client’s exposure,either at trial or in the settlement process,in order to set the baseline. Whether ornot that first step must go into the writtenagreement cannot be learned from thedictionary.

Neither does anything come fromnoticing that the phrase “is to be deter-mined” is in the future tense. To be sure,if an reverse contingent fee specifies that“the fee will be X% of the money savedunder $2 million,” that is indeed amethod by which the fee is to be deter-mined. But so is “the fee will be X% ofthe money saved under $2 million, whichrepresents Attorney’s estimate of likelysettlement” or “…which representsAttorney’s estimate of potential liabilityin a jury trial.” Grammar alone does notmake the latter sentences any less a state-ment of the “method by which the fee isto be determined” than the first sentence.The issue dividing us from the Commit-tee is not a verbal one.

In our view, when semantics and cus-tom do not settle the scope of an ambigu-

ous Rule, it helps to look at the practicalpoint of the Rule. The practical point ofimposing a writing requirement onlawyers is to protect clients by creatingsomething objective that an impartialreviewer can examine to settle disagree-ments between the lawyer and the client.7Such a disagreement can be over thenumerical terms of the agreement (“Fortypercent? You told me thirty-three!”). Butit can also be over the reasonableness ofthe agreement. In a straight contingencyfee that specifies only the percentage andthe handling of expenses, custom willenable prudent lawyers to evaluatewhether the fee is reasonable.8 A review-ing body knows that 33 percent is a rea-sonable contingency fee for many typicalcases, and it knows that 80 percent is not.

In the reverse contingent fee, however,simply seeing a number like “$2 million”is not enough to know if the lawyer hasproposed a reasonable baseline. Cases ofthis sort may typically settle for a quarterthat amount. But $2 million could be areasonable worst-case estimate of theclient’s exposure in the unlikely eventthat settlement fails and the case goes totrial. Neither way of arriving at the base-line is inherently unreasonable. The samenumber—$2 million in this example—can be a reasonable guesstimate of worst-case exposure to liability at trial and anabsurdly inflated guesstimate of the set-tlement range. Without knowing what thenumber represents, a reviewing bodywould be unable to declare that the agree-ment has violated Rule 1.5(a)’s require-ment that the fee “shall be reasonable.”Ergo, the client loses.

It may well be that reverse contingentfees will mostly be proposed by sophisti-cated clients who understand quitewell—maybe better than the lawyer—how to value cases. An insurer, forexample, has extensive data on the settle-ment value of automobile collision cases.That insurer might well propose a flat feewith an reverse contingent fee “bonus” todefense counsel who can beat the aver-ages. In such cases, we agree with theCommittee’s opinion: when the clientproposes the terms of a reverse contin-gent fee, the written agreement need saynothing beyond noting that fact. Thatsatisfies the letter of the Rule. But when

May 2009 THE DISTRICT OF COLUMBIA BAR 319

6The dictionary definition of “method” is espe-

cially unhelpful. A method is a “manner” or “pro-cedure.” The same dictionary defines a “procedure”as a “manner” or “set of…methods.” The AmericanHeritage College Dictionary 1090 (1993). It like-wise defines a “manner” as “a way of doing some-thing,” noting that in this sense the word is asynonym for “method.” Id. at 825. The word“way,” unsurprisingly, is defined as a “manner ormethod.” Id. at 1527. A closed circle of synonymschasing each other’s tails tells us nothing.

7Obviously, written agreements protect lawyers

too. Presumably, the Court of Appeals does notimpose enforceable disciplinary rules to make surethat lawyers protect themselves.

8Rule 1.5(a)(3) makes “the fee customarily

charged in the locality for similar legal services” acriterion of reasonableness.

the lawyer proposes a reverse contingentfee and a baseline for calculating it, awritten agreement that includes the base-line value but not even a hint of themethod the lawyer used to arrive at thatbaseline violates the Rule and under-pro-tects clients. The Brown & Sturm casethat the opinion discusses shows thatlawyer overreaching in a reverse contin-gent fee is not merely a hypothetical dan-ger to clients.9

Joseph Brent, PhDSteven Ebbin, PhDDavid Luban, PhD

Published: March 2009

Opinion No. 348

Accepting Credit Cards for Paymentof Legal Fees

• A lawyer may accept credit cardsfrom a client for payment of fees, includ-ing unearned fees (commonly referred toas a retainer or advance fees), so long asthe lawyer ensures that she complies withapplicable District of Columbia Rules ofProfessional Conduct, including ensuringthat she does not enter into a merchantagreement with the credit card companythat violates the Rules.

Applicable Rules• 1.5 Fees• 1.4(b) Communications• 1.6 Confidentiality of Information• 1.15 Safekeeping Property• 1.16 Declining or Terminating Rep-

resentation• 7.1 Communications Concerning

Lawyer’s Services

Inquiry

A lawyer inquired whether she mayaccept a credit card as payment forunearned (advance) fees from a client.This inquiry prompted the Committee toconsider the broader question of theacceptance of credit cards to pay earnedas well as advance fees.

Discussion

The District of Columbia Rules of Pro-fessional Conduct (Rules) do not addressthe issue of accepting credit cards forpayment of legal fees. The issue, howev-

er, was addressed by our Committee inOpinion 23 (1976), as an interpretation ofDistrict of Columbia Code of Profession-al Responsibility, the predecessor of theRules. Opinion 23 dealt only with theissue of accepting credit cards for pay-ment for services rendered (earned fees),not the issue raised by this inquiry.Moreover, Opinion 23 was modeled afterand relied upon ABA Formal Opinion338 (1974), which the ABA has sincewithdrawn.

In light of the adoption of the Rules,opinions by courts and our Committeethat expanded the permissible scope ofadvertising, and the evolution in the useof credit cards, the Committee withdrawsOpinion 23 and examines anew the con-ditions under which a lawyer may acceptcredit cards for payment of fees andexpenses, including as payment foradvance (unearned) fees.

I. Accepting Credit Cards Generally

In Opinion 23, this Committee grudg-ingly approved accepting credit cards forpayment of fees, but implied that the useof credit cards should be discouraged andlimited. Today, credit cards are recog-nized as useful in facilitating the abilityof many persons to obtain legal servicesat the time the services are needed and topay for those services on a schedule thatcomports with their budgets. In addition,accepting credit card payment of feesprovides lawyers with assurance that theywill be paid for their services and obvi-ates the need for them to expend time andmoney pursuing clients who do not payon time.1

Many jurisdictions now recognize thebenefits of accepting credit cards for thepayment of legal services.2 While theevolution of the use and acceptance ofcredit cards in society led many jurisdic-tions to approve the use of credit cards topay for legal services, accepting creditcards for payment of legal servicesinvolves the participation of a thirdparty—the credit card company—in thepayment process and, therefore, raisesconcerns generally not present in the typ-ical attorney-client fee arrangement.Thus, we must examine the ethical

restrictions faced by lawyers as a resultof the requirements credit card compa-nies impose on lawyers as “merchants.”3

The rights and duties of lawyers as mer-chants, of clients as cardholders, and ofcredit card companies as card issuers arecontractual in nature. Each party contractswith the other independently, so there arethree separate contracts to be considered.See Gregory E. Maggs, Regulating Elec-tronic Commerce, 50 Am. J. Comp. L.665, 678 (2002). While credit card mer-chant contracts applicable to lawyers maycontain similar terms and conditions, theremay well be as many differences as thereare similarities among the form contractsused by credit card companies. Discussingthe nuances of various agreements isbeyond the scope of this opinion.4

We emphasize, however, that, becauseof the unique arrangements (where thelawyer and the client each has a contractwith the credit card company that impos-es different rights and responsibilities)and the ethical obligations imposed onlawyers by our Rules, it is imperative thatlawyers (i) know and follow the Rules,(ii) know the specifics of their merchantagreements, and (iii) ensure that thoseagreements comply with the letter andthe spirit of the Rules. In that regard, acentral tenet that undergirds every suc-cessful lawyer-client relationship is com-munication. Clearly communicating withclients about the unique features andchallenges involved in accepting creditcards for payment of fees will helplawyers avoid some of the ethical pitfallsthat could attend this type of paymentarrangement.5 Rule 1.4(b) also requireslawyers to explain matters necessary to

320 THE DISTRICT OF COLUMBIA BAR May 2009

9Brown & Sturm v. Frederick Road L.P., 768

A.2d 62 (Md. Ct. Spec. App. 2001).

1Cf., D.C. Ethics Op. 310 (2002) (discussing

considerations involved in attorney–client feeagreements and noting certain factors may have apositive impact on the formation of lawyer–clientrelationships).

2E.g., California Bar Formal Op. 2007-172

(2007); Colorado Formal Ethics Op. 99 (1997);Michigan Ethics Op. R.I. 168 (1963); Utah StateBar Ethics Advisory Op. 97-06 (1997).

3Lawyers who accept credit cards for payment of

legal services are “merchants,” as that term iscom-monly used in contracts credit card companies usewith business entities. The specifics of the “merchantagreement” (which sets forth the terms on whichcredit card companies will pay merchants who acceptcredit cards for payment) between the lawyers andthe credit card companies may differ from other mer-chant agreements because the rules governing thelawyer–client relationship differ from those govern-ing other business entities and their customers.

4In section III of this Opinion, we discuss some

of the more salient requirements and prohibitionscontained in credit card merchant contracts appli-cable to lawyers.

5Rule 1.5(b) requires that, when a lawyer has

not regularly represented a client, the lawyer shallcommunicate in writing the basis or rate of the feeand the expenses for which the client will beresponsible. The lawyer should also comply withRule 7.1 when communicating with the client aboutaccepting credit cards (e.g., disclose all facts nec-essary to ensure that the client is not misled con-cerning the lawyer’s services).

permit their clients to make informeddecisions concerning their representa-tion, which includes the consequences ofpaying by credit card.

II. Issues Presented in Accepting CreditCards as Payment

A. Maintaining a Client’s Confidencesand Secrets

Rule 1.6(a)(1) provides that, “Exceptwhen permitted under paragraph (c), (d), or(e), a lawyer shall not knowingly reveal aconfidence or secret of the lawyer’s client.”Rule 1.6(e)(1) provides that, “A lawyer mayuse or reveal client confidences or secretswith the informed consent of the client.”

Lawyers should advise clients that cer-tain information, that may include “confi-dences or secrets,” such as the client’sidentity, automatically will be revealed tothe credit card company in credit cardtransactions. See Colorado Formal EthicsOp. 99 (1997) (“A lawyer cannot assumethat a client who is paying a bill by creditcard has impliedly authorized the attorneyto disclose otherwise confidential informa-tion”). Where a client informs a lawyer thathe wishes the fact of being represented toremain confidential, or a lawyer has reasonto believe he does, the lawyer should beespecially vigilant in informing the clientthat the use of credit cards involves the dis-closure of some confidential information,and of the kind of information that is like-ly to be disclosed. See Id.

A credit card company may require alawyer to provide information about thenature of services, with the amount ofdetail required determined by the particu-lar credit card company. Therefore, alawyer should make every effort to enterinto an agreement with a credit card com-pany that will allow her to provide gener-ic descriptions of services rendered.Generic descriptions recommended byother jurisdictions include: “for profes-sional services rendered,” California BarFormal Op. 2007-172 (2007); “servicesand expenses,” or “fees and expenses,”Colorado Formal Ethics Op. 99 (1997);“services and expenses” or “consulta-tion,” Michigan Ethics Op. R.I. 168(1963). If this level of generality cannotbe accomplished, the lawyer must informthe client and obtain his informed consentto whatever disclosures the credit cardcompany requires the lawyer to make.6

A more troubling confidentiality prob-lem is the requirement by some creditcard companies that the lawyer cooperatewith them in the event there is a disputebetween the client and the company. Thelawyer should first seek to enter into anagreement with a credit card companythat relieves her of any obligation tocooperate with the company in the eventof a dispute between the credit card com-pany and the client. If that is not possible,the lawyer is obligated to inform theclient of the ramifications of the lawyercooperating with the credit card companyin any dispute between the company andthe cardholder, and to obtain the client’sinformed consent that he still wants topay by using a credit card. In the event adispute develops and the credit card com-pany seeks the lawyer’s cooperation, thelawyer must comply with Rule 1.6.7 Seegenerally Michigan Ethics Op. R.I. 344(2008) (examining whether a lawyer mayaccept credit cards for payment ofadvance fees and discussing special con-cerns with respect to Rule 1.6).

B. Treatment of Fees Charged by CreditCard Companies for Processing Pay-ment

Credit card issuers generally debit amerchant (here the lawyer) a percentage ofthe cardholder’s (here the client’s) pay-ment as its fee for processing the payment.This practice raises the issue of how thelawyer may treat the credit card fee vis-à-vis her invoices for her services (i.e.,whether to pass the fee on to the client orto absorb it as a cost of doing business).

Nothing in our Rules prohibits alawyer from increasing her fee for legalservices to cover any additional costincurred in accepting credit cards. Theonly limitation imposed by the Rules isthat the fee must be “reasonable.” Rule1.5(a). Among the factors to be consid-ered in determining whether a fee is rea-sonable are “the limitations imposed bythe client or by the circumstances.” Aclient’s need to procure legal servicesfrom a lawyer whom the client believes isqualified to meet his needs and a client’sdecision that using a credit card to pay forthe services is the best means of obtain-

ing those services are limitations or cir-cumstances within Rule 1.5. We thusbelieve a lawyer properly may pass on tothe client the fees charged by credit cardcompanies for processing payment.8

In Opinion 310, this Committee exam-ined the propriety of a lawyer charginginterest when a client fails to pay timelyand is instructive in assessing the proprietyof passing on to clients the additional costsincurred in accepting credit cards. Recog-nizing that a lawyer must somehowaccount for the additional cost of clientswho do not pay or who pay late, the Com-mittee stated, “[I]f the lawyer can focus thelawyer’s additional costs of dealing withclients who do not pay or pay timely onthose clients themselves, that allows thelawyer to avoid attempting to spread thoseadditional costs among all of the lawyer’sclients.” D.C. Ethics Op. 310 (2001).

We believe Opinion 345 also supportsour view that a lawyer who incurs anadditional cost for accepting credit cardsmay pass those costs on to the client whocharged the legal services. In Opinion345, this Committee recognized that alawyer who incurs interest charges fromher bank when she has used the firm’s lineof credit to advance to a client the costs ofthe representation may pass those costsalong to the client. D.C. Ethics Op. 345(2008). Just as the lawyer who passed onthe interest charges assessed against herwas not making a profit, the lawyer whopasses on the fee that the credit card com-pany charges for processing payments isnot making a profit.9

Before passing on such fees, however,the lawyer must comply with Rule 1.5(b)by explaining to the client that the feecharged by the credit card company will becharged to the client as an expense. Toguard against later misunderstanding, theCommittee suggests that the lawyer go fur-ther and obtain the client’s “informed con-sent” to being charged an additionalamount to recapture the fees that the lawyermust pay the credit card company.10

May 2009 THE DISTRICT OF COLUMBIA BAR 321

6As defined in Rule 1.0(e), “‘Informed consent’

denotes the agreement by a person to a proposedcourse of conduct after the lawyer has communi-cated adequate information and explanation aboutthe material risks of and reasonably available alter-natives to the proposed course of conduct.”

7It is difficult to imagine that a lawyer would

voluntarily cooperate with a credit card company ifthere is a dispute between the company and theclient, absent a provision in the merchant contractthat requires the lawyer to do so. A lawyer mustresist any effort by a credit card company to compelher to disclose client confidences or secrets protect-ed by Rule 1.6. Absent the client’s informed consent,a contractual requirement of cooperation cannottrump the lawyer’s obligation of confidentiality.

8 An alternative way of accomplishing the sameresult might be to offer a discount to clients whopay cash or by check.

9 At least one other jurisdiction considering thisissue has found that the fees charged by the creditcard company “are legitimate costs that the attor-ney may pass on to the client.” Utah State BarEthics Advisory Op. No. 97-06 (1997).

10 In the context of credit card use, this meansthe lawyer would explain to the client that theclient’s use of a credit card will increase thelawyer’s fees by the exact percentage the creditcard charges for a fee (e.g., if the client’s bill is$5,000 and the credit card company charges threepercent (3 percent), the client must pay $5,150).

We conclude that there is no ethical barto lawyers passing on the credit card pro-cessing fees to their clients,11 however,we note that as a matter of good businesspractice, lawyers may wish to follow thepractice of other merchants and absorbthe costs. See Utah State Bar Ethics Advi-sory Op. No. 97-06 (1997). In Michigan,lawyers are required to absorb thesecosts. Michigan Ethics Op. R.I. 168(1963); compare California Bar FormalOp. 2007-172 (2007) (lawyer may “ethi-cally absorb the service charge debited bythe credit card issuer”).

C. Advertising and Promoting theAcceptance of Credit Cards

When the ABA first considered use ofcredit cards–and in our now withdrawnOpinion 23–there was considerable dis-cussion of the lawyer’s ability to advo-cate and advertise the use of credit cards.Although these concerns now seem out-moded, we discuss them briefly.

Over the years, the Rules were changedto recognize the evolution in the legalprofession with respect to lawyer adver-tising. Decades ago, it was recognizedthat advertising does not inherently bringdishonor to the profession and that prohi-bitions on all advertising conflicted withantitrust laws and the First Amendment.Rule 7.1 allows advertising so long as thelawyer does not use false or misleadingstatements. Stating that “the interest inexpanding public information about legalservices ought to prevail over considera-tions of tradition,” Comment [2] to Rule7.1 recognizes the dual benefits of adver-tising: it promotes the lawyer’s activequest for clients, while at the same time,fulfills the public’s need to know aboutlegal services. Comment [3] to Rule 7.1expressly states that the Rule permits pub-lic dissemination of information about“payment and credit arrangements.”

Another issue is whether a lawyer mayadvocate the client’s use of credit cardsor just accept the cards passively. Thereis nothing in the Rules that explicitlyprohibits a lawyer from encouraging aclient to use a credit card for payment oflegal services. Although we can foreseecircumstances when encouraging a clientin dire financial straits to pay by creditcard might not be in the client’s bestinterests, a lawyer is generally not afinancial advisor. Unless the scope ofthe lawyer’s representation includes such

advice, in which case Rule 2.1 might beimplicated, the client is responsible forevaluating his ability to pay the lawyer’sfee and for deciding how to do so. Com-pare Utah State Bar Ethics Advisory Op.97-06 (1997) (noting that, while nothingin Utah’s Rules explicitly requires anattorney to discourage the use of creditcards for payment, economic factors of aclient’s situation could require the attor-ney to advise that client not use a creditcard).

III. Issues Presented by Accepting CreditCards for the Payment of AdvanceFees and Expenses

Opinions from other jurisdictionsgenerally conclude that a lawyer mayaccept credit cards for the payment ofadvance fees. See California Bar FormalOp. 2007-172 (2007); Colorado FormalEthics Op. 99 (1997); MassachusettsBar Ethics Op. 78 -11 (1978); MichiganOp. R.I. 344 (2008); North CarolinaFormal Ethics Op. 97-9 (1998); OregonEthics Op. 2005-172 (2005). ContraArizona Ethics Op. 08-01 (2008) (“Useof credit cards for payment of advancefees or expected costs is not ethicallypermissible in Arizona for several rea-sons”). With the exception of Califor-nia, which has no requirement thatlawyers deposit advances into trustaccounts, these other jurisdictionsrequire that the advance payments—whether paid in cash, by check, or bycredit card—be deposited into thelawyer’s trust account, as opposed to heroperating account.

We find there is nothing in the D.C.Rules that prohibits a lawyer from usinga credit card for unearned legal fees andexpenses (advance fees), provided thatthe use of a credit card does not jeopard-ize the security of entrusted funds.

A. Depositing Advance Fees Into TrustAccounts

Rule 1.15(d) provides, “Advances ofunearned fees and unincurred costs shallbe treated as property of the client pur-suant to paragraph (a) until earned orincurred unless the client gives informedconsent to a different arrangement.”

As we noted above, the law governingcredit card transactions is contractual innature, and the details of merchant agree-ments vary depending on the credit cardcompany. While we cannot detail or dis-cuss all the provisions of every agree-ment, many agreements include some orall of the following requirements andprohibitions:

• Requirement that reimbursement ofunused fees must be credited to theuser’s card and not paid by cash orcheck;

• Requirement that the cardholder(client) have “chargeback” rightspending resolution of a dispute (i.e.,the credit card company has the rightto access the lawyer’s account to debitfunds previously deposited into thataccount and charge it back to the card-holder);

• Provision that in disputes, no “charge-back” is made, but the client would notbe charged until the matter is resolved(both parties would have an opportuni-ty to submit evidence and have thematter resolved by the company’s dis-pute resolution section);

• Prohibition on charging for servicesbefore services are rendered;12

• Requirement that payments made tothe lawyer by the credit card companybe made through an approved Settle-ment Account.

Before accepting credit cards for anadvance fee, the lawyer must have a com-plete and detailed understanding of theagreement imposed on her by credit cardcompanies. In many cases it may proveimpossible for the lawyer to depositadvance fees paid by credit card into trustaccounts and adhere to the terms of theagreement. Funds in trust accountsbelong to the clients, not to the lawyer.As such, they cannot be attached by thelawyer’s creditors. But because manycredit card agreements permit the creditcard company to invade the merchant’sbank account and charge back moniesalready paid the merchant if the customerdisputes a bill, there is a danger thatfunds deposited in a lawyer’s trustaccount might be “clawed back.” Undersome circumstances this could result in asituation where there are insufficientfunds in the account.

For example, suppose a lawyerdeposits an advance fee of $50,000 intoher trust account and, as the fee is earned,transfers $40,000 to her operatingaccount. If the client lodges a protest withthe credit card company challenging thelawyer’s right to payment, the credit cardcompany, under its standard merchant

322 THE DISTRICT OF COLUMBIA BAR May 2009

11It may be that the lawyer’s agreement with

the credit card company addresses whether the feescan be passed on. This is a matter of contract,which we do not address.

12If the merchant agreement provides that ser-

vices must have been rendered prior to the submis-sion of charges, the lawyer may not accept a creditcard as a payment of a retainer or advance. See Col-orado Bar Formal Ethics Op. 99 (1997). The Col-orado Opinion provides a much more detaileddiscussion of the nuances of merchant’s agreements.

agreement, might invade the lawyer’strust account, and claw back the entire$50,000, pending resolution of the dis-pute. This would mean that the lawyerhad insufficient funds in her account tocover her obligations to other clientswhose funds she is holding. In some cir-cumstances, it could even result in theaccount being overdrawn.

Because the Committee does not andcannot know the details of all contractualarrangements between lawyers and cred-it card companies, we cannot concludethat credit cards can never be used to payadvance fees into trust accounts. But if acredit card is used in this fashion, thelawyers must ensure that under no cir-cumstances can the credit card companyinvade her trust account. If that possibili-ty exists, a credit card may not be used.Moreover, the lawyer must understand allthe provisions of her agreement with thecredit card company to ensure thatentrusted client funds are safe and secure.Absent that assurance, a credit card maynot be used to advance entrusted funds.

B. Consent to Deposit Advance Fees inOperating Accounts

Rule 1.15(d) permits the deposit ofadvance fees into a lawyer’s operatingaccount provided that the client providesinformed consent. Such fees are treatedas the lawyer’s property, although she hasthe obligation to and must have thewherewithal to repay them promptly ifshe does not earn them. To ensure that theconsent provided by a client is “informedconsent,” the lawyer must explain that,unlike fees deposited in a trust account,these fees can be attached by the lawyer’screditors because legally they are thelawyer’s property. Moreover, the provi-sions of the agreement with the creditcard company may raise other issues ifcredit cards are used to pay advance feesinto an operating account, which thelawyer must not only understand, butexplain to her client.13

A lawyer who deposits credit cardadvance payments into an operatingaccount potentially faces a dilemma withrespect to charge-backs. An examplemay help explain the potential dilemma.Clients A and B retain Lawyer for unre-

lated legal work. Both are required to paya substantial advance. Client B pays hisadvance by check and grants Lawyer per-mission to deposit the advance into heroperating account. Client A chooses topay the advance by credit card, and alsogrants Lawyer permission to deposit theadvance into her operating account.Client A’s credit card company has a pol-icy of withdrawing money from mer-chants when the cardholder has a disputewith a merchant, pending resolution ofthe dispute.

Nine months into the relationship,Client A disputes his bill from Lawyer andcontacts the credit card company to com-plain. The credit card company immedi-ately invades Lawyer’s operating accountand withdraws the entire disputed amount,which is substantially all of the advance.Meanwhile, Lawyer has concluded ser-vice to Client B successfully and owesClient B a refund, which she promptlymakes by issuing Client B a check drawnon the operating account. The charge-backby the credit card company has leftLawyer without sufficient funds to coverthe check to Client B. Were this insuffi-ciency of funds to occur in a trust account,the lawyer would face charges of misap-propriations. Even if the lawyer technical-ly has not misused Client B’s fundsbecause funds in the operating account arenot “entrusted,” she still has an obligationto refund unearned fees. Having insuffi-cient funds in her operating account mightjeopardize obligations to Client B.

As the foregoing example makes clear,even if advance funds may be depositedinto a lawyer’s operating account andthus are not impermissibly commingled,the lawyer must employ the necessarysafeguards, including accounting proce-dures, to ensure that she remains in fullcompliance with all ethical rules. Alawyer may substantially eliminate thelikelihood of a charge of misusing aclient’s funds if she follows a strict prac-tice of billing clients only after the ser-vices have been rendered andwithdrawing funds only after the disputeperiod (most cardholders typically have120 days from the date of a transactionwithin which to dispute a charge). SeeKentucky Ethics Op. E-426 (2007) (sug-gesting that a lawyer “could avoid theethical implications of a chargeback bydelaying disbursements until after thetime a chargeback could occur”).

C. Refunding Unearned Fees

Irrespective of whether a client con-sents to the lawyer depositing the

advance into an operating account, Rule1.16(d) requires that the lawyer return tothe client any unearned or unused portionof advanced legal fees and costs at thetermination of the lawyer’s services.Specifically, Rule 1.16(d) provides, aspertinent, “In connection with any termi-nation of representation, a lawyer shalltake timely steps to the extent reasonablypracticable to protect a client’s interests,such as… refunding any advance pay-ment of fee or expense that has not beenearned or incurred.”

Accepting credit cards for the paymentof unearned fees imposes on a lawyer theobligation to know whether her merchantcontract with the credit card companyrequires her to refund any unearned fundsto the client directly, or whether she mayleave the charge on the credit card andreturn the fees to the client by cash orcheck. If the credit card companyrequires crediting the refund to theaccount, the lawyer must explain this inwriting before accepting the credit cardfor payment. See Rule 1.5(b) (requiringthat “the basis or rate of the fee, the scopeof the lawyer’s representation, and theexpenses for which the client will beresponsible shall be communicated to theclient, in writing, before or within a rea-sonable time after commencing represen-tation”). See also Rule 7.1.

IV. Conclusion

Credit cards are an acceptable methodof paying legal fees provided that theclient understands and consents to what-ever disclosures to the credit card compa-ny are required by the merchantagreement. The client must also beinformed of the actual cost of using thecredit card if the lawyer intends to recap-ture from her client the fees she must payto the credit card company. While creditcards may also be used to pay advancefees or retainers, this may be done only ifit does not endanger entrusted clientfunds and only if the lawyer thoroughlyunderstands the merchant agreement andarranges her affairs so that she has theability to meet her obligation to refundunearned fees.

Published: March 2009

May 2009 THE DISTRICT OF COLUMBIA BAR 323

13While a discussion of substantive law is

beyond the scope of this Opinion, any lawyer whochooses to accept a credit card for payment of legalfees must be knowledgeable about and comply withfederal and state consumer credit laws, such as theTruth in Lending Act (15 U.S.C. § 1666i); Regula-tion Z (12 C.F.R. § 226.12); and the District ofColumbia Consumer Protection Procedures Act,(D.C. Code 29-3901, et seq.)

Opinion 349

Conflicts of Interest for Lawyers Asso-ciated with Screened Lawyers WhoParticipated in a Joint Defense Group

Joint defense agreements do not create“former client” conflicts under Rule 1.9because members of a joint defensegroup do not become the lawyer’s“clients” by virtue of such agreements.However, a lawyer who participates in ajoint defense agreement may acquirecontractual and fiduciary obligations tothe members of the joint defense groupwho were not the lawyer’s clients. Suchobligations can give rise to a personallydisqualifying conflict under Rule1.7(b)(4) to the extent that they material-ly limit the lawyer’s ability to prosecuteor defend a substantially related matteradverse to a joint defense group member.

Under Rule 1.10(a)(1), such conflictsare not automatically imputed to otherlawyers in the lawyer’s firm. If thelawyer has moved to a new firm sincehandling the joint defense group matter,other lawyers at the new firm couldundertake a substantially related matteradverse to a joint defense group member,provided that the personally disqualifiedlawyer is timely screened from the newrepresentation. The analysis is more dif-ficult if the lawyer has remained at thesame firm. If that firm wishes to under-take a related matter adverse to a mem-ber of the joint defense group, the firmmust consider: (i) whether the entire firmis bound by a joint defense agreementthat one of its lawyers signed while affil-iated with the firm; and (ii) if not,whether the lawyers who would be han-dling the new matter might have beenexposed to confidential informationfrom the joint defense group matterwhile that matter was being handled byothers in the same firm.

Applicable Rules• Rule 1.6 (Confidentiality of Infor-

mation)• Rule 1.7 (Conflict of Interest: General)• Rule 1.9 (Conflict of Interest: For-

mer Client)• Rule 1.10 (Imputed Disqualification

General Rule)

Inquiry

The District of Columbia Rules of Pro-fessional Conduct (“Rules”) provideclear guidance to a lawyer who is consid-ering taking on a representation that

would be adverse to a former client ofthat lawyer or of another lawyer in thesame law firm. The Committee hasreceived multiple inquiries about whetherand to what extent the Rules apply to rep-resentations adverse to members of ajoint defense group who were neverclients of the lawyer or law firm. In thisopinion, the Committee considers twovariations of the following scenario:

Lawyer A represented an individual ina criminal investigation focused on theindividual’s employer (“Employer”) andothers. Lawyer A executed a joint defenseagreement with the other subjects of theinvestigation, including Employer, aris-ing out of a common interest. Lawyer Asubsequently received confidential infor-mation relating to the investigation fromEmployer and participated in meetingswith Employer’s counsel to discuss jointstrategy and other work product. LawyerA ultimately resolved the individualclient’s matter with the government, andthe representation terminated.

Scenario #1—New Firm: AfterLawyer A resolved the criminal matteron behalf of the individual, he left hisoriginal law firm and joined a new lawfirm (“New Firm”). Client X approachesNew Firm about suing Employer fordamages arising out of the conduct thatgave rise to the criminal investigation.New Firm proposes to screen A from therepresentation. Lawyer A is the onlylawyer at New Firm who participated inthe joint defense agreement. Becausethat representation was completed beforeLawyer A joined New Firm, there are noother lawyers at New Firm who repre-sented the individual employee in thecriminal investigation. Would this repre-sentation violate the Rules, in particular,Rules 1.6, 1.9, and 1.10?

Scenario #2—Same Firm: Lawyer Adoes not change law firms. After the res-olution of the criminal matter, Client Xapproaches Lawyer A’s law firm(“Firm”) about suing Employer for dam-ages arising out of the conduct that gaverise to the criminal investigation.Because the joint defense agreement thatLawyer A signed with Employerrequired A to keep confidential all infor-mation as well as work product sharedby Employer, Firm proposes to screenLawyer A and all the lawyers with whomhe worked on the criminal investigationfrom participating in the lawsuit to befiled by Client X. Assuming that aneffective screen is imposed, wouldFirm’s representation of Client X againstEmployer violate of any of the Rules, inparticular Rules 1.6, 1.9, and 1.10?

Analysis

In the District of Columbia, the Rules donot mention joint defense agreements. Cer-tain decisions in other jurisdictions havedisqualified lawyers from matters adverseto members of a joint defense groupbecause of the past membership in the jointdefense group of another lawyer in thesame firm. See, e.g., All American Semi-conductor, Inc. v. Hynix Semiconductor,Inc., 2009-1 Trade Cas. (CCH) ¶ 76,465(N.D. Cal. Dec. 18, 2008), order clarifiedby 2009-1 Trade Cas. (CCH) ¶ 76,501(N.D. Cal. Feb. 5, 2009); In re GabapentinPatent Litig. 407 F. Supp. 2d 607 (D.N.J.2005), reconsideration denied, 432 F.Supp. 2d 461 (D.N.J. 2006); National Med-ical Enterprises, Inc. v. Godbey, 924S.W.2d 123 (Tex. 1996).1 Those casesrelied upon the obligations that a lawyerowes a former client under the rules ofother jurisdictions. In approaching thesequestions in the District of Columbia, onemust distinguish between obligationsimposed by the Rules and obligations aris-ing under other law, such as the law of con-tracts or principles of fiduciary duty. ThisCommittee’s jurisdiction is limited to ques-tions arising under the Rules.

A. Background.

1. Duties to Former Clients.

Without a former client’s consent, a lawfirm may not represent others in suing theformer client in matters that are the same asor substantially related to the matter inwhich the firm represented the former client.Rule 1.9 prohibits the lawyer who represent-ed the former client from representing any-one against the former client in the same orin a substantially related matter.2 Rule

324 THE DISTRICT OF COLUMBIA BAR October 2009

1In the Gabapentin Patent Litigation case, for

example, a law firm was disqualified from litigationdespite the screening of two lateral attorneys whojoined the firm during the litigation. The firm hadobtained a consent from the laterals’ former client.However, the firm was disqualified because it didnot obtain separate consents from the other mem-bers of the joint defense group in which the lateralshad participated. Finding “a fiduciary and impliedattorney-client relationship between” the two later-als and the other members of the joint defensegroup, the court held that the other members of thejoint defense group were, “by implication, [the lat-erals’] ‘former clients’. . . .” 407 F. Supp. 2d at 615.The law firm was disqualified because the courtconcluded that the two laterals were personally dis-qualified under New Jersey’s Rule 1.9, and that con-flict was imputed to other lawyers in the same firmunder New Jersey’s Rule 1.10. Id. Under thoserules, screening without a consent was not availableto cure the conflict. Id. at 615-16.

2Rule 1.9 provides: “A lawyer who has former-

ly represented a client in a matter shall not there-

1.10(a) imputes that conflict to all otherlawyers in the same law firm, even ifthose other lawyers had nothing to dowith the representation of the formerclient.3 When a lawyer joins a new firm,however, conflicts are imputed to theother lawyers in the firm only if thelawyer had “in fact acquired informationprotected by Rule 1.6 [confidentiality ofinformation] that is material to the mat-ter.” Rule 1.10(b).4 Although the Rulesrecognize the concept of a screen5—andrequire use of screens in certain circum-stances—a screen alone does not resolvean imputed former client conflict underRules 1.9 and 1.10. See D.C. Legal EthicsOpinion 279 (1998).

2. Joint Defense Agreements Generally.

Joint defense agreements are enteredinto by parties who, by choice or bynecessity given applicable conflict ofinterest rules, have separate counsel inthe matter but have some common inter-ests. They may be used in both criminaland civil matters. They may be written orunwritten. This Committee is not opiningon the validity or intricacies of jointdefense agreements, but sets forth here abrief background on such agreements as

context for the application of the Rules tothe questions presented.

A joint defense agreement (also knownas a common interest agreement) is a wayfor clients and their lawyers to share priv-ileged information with third partieswithout waiving otherwise applicableprivileges.

The joint defense privilege, oftenreferred to as the common interest rule,is an extension of the attorney-clientprivilege that protects from forced dis-closure communications between two ormore parties and/or their respectivecounsel if they are participating in ajoint defense agreement. It permits aclient to disclose information to herattorney in the presence of joint partiesand their counsel without waiving theattorney-client privilege and is intendedto preclude joint parties and their attor-neys from disclosing confidential infor-mation learned as a consequence of thejoint defense without permission.

United States v. Hsia, 81 F. Supp. 2d 7,16 (D.D.C. 2000) (citations omitted). “Itprotects communications between theparties where they are ‘part of an on-going and joint effort to set up a commondefense strategy’ in connection with actu-al or prospective litigation.” Minebea Co.v. Papst, 228 F.R.D. 13, 15 (D.D.C. 2005)(citations omitted). “[T]he rule appliesnot only to communications subject to theattorney-client privilege, but also to com-munications protected by the work-prod-uct doctrine.” Id. at 16 (quoting In reGrand Jury Subpoenas, 902 F.2d 244,249 (4th Cir. 1990)). “Although occasion-ally termed a privilege itself, the commoninterest doctrine is really an exception tothe rule that no privilege attaches to com-munications between a client and an attor-ney in the presence of a third person.”United States v. BDO Seidman, LLP, 492F.3d 806, 815 (7th Cir. 2007).

As with any contract or other agree-ment, the precise terms of a joint defenseagreement depend on the agreementitself. Some forms of joint defense agree-ment define in great detail the rights andobligations that each member of the jointdefense group is assuming with respect toevery other member of the group. Forexample, the joint defense agreementmight specifically disclaim any attorney-client relationship with the members ofthe joint defense group who are not theparticipating lawyer’s client. It might alsoprovide a specific waiver to allow use ofconfidential joint defense information tocross-examine and impeach a member ofthe joint defense group who becomes a

witness for the adversary after abandon-ing the joint defense through, e.g., a guiltyplea or settlement agreement.

One form of joint defense agreementthat does both provides as follows:

Nothing contained herein shall bedeemed to create an attorney-client rela-tionship between any attorney and any-one other than the client of that attorneyand the fact that any attorney hasentered this Agreement shall not be usedas a basis for seeking to disqualify anycounsel from representing any otherparty in this or any other proceeding;and no attorney who has entered intothis Agreement shall be disqualifiedfrom examining or cross-examining anyclient who testifies at any proceeding,whether under a grant of immunity orotherwise, because of such attorney’sparticipation in this Agreement; and thesignatories and their clients furtheragree that a signatory attorney examin-ing or cross-examining any client whotestifies at any proceeding, whetherunder a grant of immunity or otherwise,may use any Defense Material or otherinformation contributed by such clientduring the joint defense; and it is hereinrepresented that each undersigned coun-sel to this Agreement has specificallyadvised his or her respective client ofthis clause and that such client hasagreed to its provisions.

United States v. Stepney, 246 F. Supp. 2d1069, 1085 (N.D. Cal. 2003) (quotingJoint Defense Agreement, Am. Law Insti-tute-Am. Bar Ass’n, Trial Evidence in theFederal Courts: Problems and Solutions,at 35 (1999)).

Indeed, the Stepney court recommend-ed use of such a waiver in a criminal caseafter holding that a joint defense agree-ment which purported to create “a gener-al duty of loyalty to all participatingdefendants” was “unacceptable” and sup-ported by “neither precedent nor soundpolicy.” 464 F. Supp. 2d at 1084-85.6 Thecourt found that “[a] duty of loyalty

October 2009 THE DISTRICT OF COLUMBIA BAR 325

after represent another person in the same or a sub-stantially related matter in which that person’sinterests are materially adverse to the interests ofthe former client unless the former client givesinformed consent.”

3Rule 1.10(a) provides:

While lawyers are associated in a firm, noneof them shall knowingly represent a clientwhen any one of them practicing alonewould be prohibited from doing so by Rules1.7 or 1.9, unless:

(1) the prohibition of the individual lawyer’srepresentation is based on an interest of thelawyer described in Rule 1.7(b)(4) and thatinterest does not present a significant risk ofadversely affecting the representation of theclient by the remaining lawyers in the firm; or

(2) the representation is permitted by Rules1.11 [successive government and privateemployment], 1.12 [former arbitrator], or1.18 [duties to prospective client].

4Rule 1.10(b) provides: “When a lawyer

becomes associated with a firm, the firm may notknowingly represent a person in a matter which isthe same as, or substantially related to, a matter withrespect to which the lawyer had previously repre-sented a client whose interests are materially adverseto that person and about whom the lawyer has in factacquired information protected by Rule 1.6 that ismaterial to the matter. The firm is not disqualified ifthe lawyer participated in a previous representationor acquired information under the circumstancescovered by Rule 1.6(h) or Rule 1.18.”

5See Rule 1.0(l) (defining “screened”).

6See also Stepney at 1079-80 (“Joint defense

agreements are not contracts which create whateverrights the signatories chose, but are written notice ofdefendants’ invocation of privileges set forth incommon law. Joint defense agreements thereforecannot extend greater protections than the legalprivileges on which they rest. A joint defense agree-ment which purports to do so does not accurately setforth the protections which would be given to defen-dants who sign. In the present case, unless the jointdefense privilege recognized in this Circuit imposesa duty of loyalty on attorneys who are parties to ajoint defense agreement, the duty of loyalty set forthin the proposed agreement would have no effectother than misinforming defendants of the actualscope of their rights.”) (footnote omitted).

between parties to a joint defense agree-ment would create a minefield of poten-tial conflicts.” Id. at 1083. Such conflictswould include:

• The inability to cross-examine attrial co-defendants who participatedin the joint defense group but laterdecided to cooperate with the adver-sary and testify on its behalf.7

• The inability to “cross-examine adefendant who testified on his ownbehalf.” Id.

• The inability “to put on a defensethat in any way conflicted with thedefenses of the other defendants par-ticipating in a joint defense agree-ment.” Id.

• The inability to “shift blame to otherdefendants or introduce any evi-dence which undercut their defens-es.” Id.

As illustrated by the above, “a jointdefense agreement that imposes a duty ofloyalty to all members of the joint defenseagreement eliminates the utility of employ-ing separate counsel for each defendantand (for purposes of conflict analysis)effectively creates a situation in which allsigning defendants are represented jointlyby a team of all signing attorneys.” Stepneyat 1083. Such a situation is ethically imper-missible in some circumstances, includingthose presented to the Stepney court. Seeid. at 1083-1084 (“The court certainlycould not permit joint representation ofdefendants with such disjointed interests asthose in the present case.”) (citing Fed. R.Crim. P. 44(c)(2)).

Just as a joint defense agreement maycontain a specific waiver to allow cross-examination and impeachment of a defect-ing joint defense group member, it mightalso provide specific agreed-upon groundrules to address situations in which:

• Other lawyers in a participatingattorney’s law firm are asked to rep-resent clients in matters adverse toone or more non-client members ofthe joint defense group, includingmatters that are substantially relatedto the joint defense matter.

• A participating lawyer moves toanother law firm which has, or islater asked to undertake, representa-tions adverse to one or more mem-bers of the joint defense group thatare substantially related to the jointdefense matter.

The parties could agree, for example,that other attorneys at any law firm thatthe participating attorney might later joinshall not be precluded by virtue of theattorney’s past participation in the jointdefense group from undertaking, or con-tinuing to handle, potentially relatedmatters adverse to one or more non-client members of the joint defensegroup, provided that the lawyer in ques-tion does not personally participate inthe representation and is timely screenedfrom it. Such an understanding wouldprovide certainty and avoid potentialissues under the rules of professionalconduct in most jurisdictions by provid-ing advance consent to the extent that aconsent might be deemed to be requiredunder the applicable rules.8

B. Joint Defense Agreements and the Rules.

In the District of Columbia, Rule 1.9addresses only conflicts that involve a“former client” of the lawyer. By its ownterms, Rule 1.9 creates no obligationswith respect to a person or entity whonever was a client.9 Case law in the Dis-trict of Columbia requires a showing“that an attorney-client relationship for-merly existed” in order for the Rule toapply. Derrickson v. Derrickson, 541A.2d 149, 152 (D.C. 1988). Because anon-client member of a joint defensegroup is not a “client”—and in manycases could not be a client under theapplicable conflicts rules—Rule 1.9 doesnot preclude adversity to non-client jointdefense group members. In the absenceof a prohibited “former client” conflict

under Rule 1.9, there is nothing toimpute to other lawyers at the same firmunder Rule 1.10(a).

Similarly Rule 1.10(b) speaks only to asituation in which a lawyer moves fromone firm to another after having repre-sented a “client” at the first firm. Nothingin the text of that rule prohibits otherlawyers at the new firm from beingadverse to a person or entity their newcolleague never represented.

Nor does Rule 1.6 create any confiden-tiality obligations to non-clients that areenforceable through discipline under theRules. The only obligations that Rule 1.6imposes involve “a confidence or secretof the lawyer’s client.” A joint defenseagreement does not make the parties“clients” of the participating lawyers.Indeed the raison d’être for a jointdefense agreement is to share privilegedinformation with non-clients.

Even though non-client members of ajoint defense group are not “clients” or“former clients,” they are “third parties”to whom an individual attorney may owean obligation under a joint defense agree-ment. Such an obligation can give rise toa conflict of interest under Rule 1.7.

Rule 1.7(b)(4) addresses conflictsinvolving third parties:

[A] lawyer shall not represent a clientwith respect to a matter if . . . thelawyer’s professional judgment onbehalf of the client will be or reasonablymay be adversely affected by thelawyer’s responsibilities to or interestsin a third party or the lawyer’s ownfinancial, business, property, or personalinterests. (emphasis added).

Under this Rule, a lawyer’s confiden-tiality responsibilities to a non-clientmember of a joint defense group maypreclude the lawyer from undertaking arepresentation adverse to the member in asubstantially related matter that impli-cates the confidential information. Thelawyer will be personally disqualifiedfrom such a matter unless the lawyer cansecure a release from the obligation.10

326 THE DISTRICT OF COLUMBIA BAR October 2009

7See id. at 1083 (“Should any defendant that

signed the agreement decide to cooperate with thegovernment and testify in the prosecution’s case-in-chief, an attorney for a non-cooperating defendantwould be put in the position of cross-examining awitness to whom she owed a duty of loyalty onbehalf of her own client, to whom she also wouldowe a duty of loyalty. This would create a conflictof interest which would require withdrawal. . . .[T]he existence of a duty of loyalty would requirethat the attorneys for all noncooperating defendantswithdraw from the case in the event that any oneparticipating defendant decided to testify for thegovernment.”).

8In some jurisdictions, consents must be in writ-

ing or confirmed in writing. See, e.g. ABA ModelRules 1.7(b)(4) and 1.9(a). While the D.C. Rules donot require that waivers be in writing (see Rule 1.7cmt. 28), this Committee has recommended “that—for the protection of lawyers as well as clients—advance waivers be written.” D.C. Legal EthicsOpinion 309 (2001).

9See also ABA Formal Opinion 95-395, Oblig-

ations of a Lawyer Who Formerly Represented aClient in Connection with a Joint Defense Consor-tium (1995) (while a lawyer “would almost surelyhave a fiduciary obligation to the other members ofthe consortium . . . [h]e would not, however, owe anethical obligation to them, for there is simply noprovision of the Model Rules imposing such anobligation.”).

10Conflicts arising under Rule 1.7(b) can be

waived if “(1) each potentially affected client pro-vides informed consent . . .; and (2) the lawyer rea-sonably believes that the lawyer will be able toprovide competent and diligent representation toeach affected clients.” Rule 1.7(c). In this context,of course, the non-client joint defense group mem-ber is not an “affected client” whose consent isrequired under 1.7(c). However, law independent ofthe Rules may require the lawyer to get a release ofsome kind before the lawyer may begin a represen-tation that would otherwise be prohibited by thejoint defense agreement. If the terms of that releaseimpose any material limitations on the lawyer’s rep-

Unlike other conflicts under Rules 1.7and 1.9, a Rule 1.7(b)(4) conflict is notnecessarily imputed to other lawyers in thesame law firm. Rule 1.10(a)(1) takes suchconflicts out of the general imputation rule:

(a) While lawyers are associated in afirm, none of them shall knowingly rep-resent a client when any one of thempracticing alone would be prohibitedfrom doing so by Rules 1.7 or 1.9, unless:(1) the prohibition of the individuallawyer’s representation is based on aninterest of the lawyer described in Rule1.7(b)(4) and that interest does not pres-ent a significant risk of adversely affect-ing the representation of the client bythe remaining lawyers in the firm . . . .

Thus, a joint defense agreement obli-gation to a non-client will be treated as anindividual lawyer’s obligation to a thirdparty. That obligation is not imputed toother lawyers in the firm as long as theindividual lawyer’s interest does notpresent a significant risk of adverselyaffecting the representation of the clientby the other lawyers in the firm. In mostcircumstances, deployment of a timelyand effective screen will eliminate therisk that an individual lawyer’s obliga-tions under a joint defense agreementwill adversely affect the client’s repre-sentation by other lawyers in the firm.11

C. Application to the Pending Inquiry.

Both scenarios presented to the Com-mittee for analysis involve a law firmbeing asked to represent Client X in relat-ed litigation against a non-client partici-pant (Employer) in a joint defenseagreement to which one of the firm’s cur-rent lawyers, Lawyer A, had been a party.We assume the litigation will not involve

or adversely affect the employee—Lawyer A’s former client from the crimi-nal investigation.12 Lawyer A hasconfidential information from Employerthat the joint defense agreement pre-cludes him from sharing or using onanother’s behalf against Employer. Thelaw firm seeking to represent X in the lit-igation against Employer plans to screenthe lawyer from the representation.

The only difference between the twoscenarios is that, in the first scenario,Lawyer A has changed law firms sincehandling the criminal matter. New Firmhas been asked to represent X in the liti-gation and New Firm’s only connectionwith the past criminal representation isthat it is now associated with the lawyerwho handled it at a previous firm. In thesecond scenario, by contrast, the law firmthat is being asked to represent Client Xagainst Employer is the same firm thatLawyer A was associated with during therepresentation of the employee in thecriminal matter.

1. The Screened Lawyer Is At a New Firm,Which Has Been Asked to Handle theRelated Matter Against the JointDefense Group Member.

In the first scenario, New Firm shouldnot be precluded from representingClient X in the litigation against Employ-er under Rules 1.7(b)(4) and 1.10(a)(1).While we assume Lawyer A at New Firmhas relevant confidential information ofEmployer that cannot be shared with oth-ers because of the joint defense agree-ment, a timely and effective screenassures that Lawyer A will not violate thelawyer’s own personal obligations underthe joint defense agreement, and that oth-ers in New Firm will not be tainted byexposure to confidential information thatcannot be used or disclosed. This is a sit-uation in which there would not appear tobe any “significant risk of adverselyaffecting the representation of the clientby the remaining lawyers in” New Firm,so Lawyer A’s personal disqualificationwould not be imputed to others in thefirm. New Firm does not need a consentfrom Employer because Employer neverwas Lawyer A’s client. Thus, Rule 1.9

does not apply to Lawyer A, and there isno Rule 1.9 conflict to impute to otherlawyers in New Firm under Rule 1.10(a).Similarly, Employer’s never-client statusas to A means that the New Firm does nothave an imputed conflict under Rule1.10(b), which applies only to mattersinvolving a lateral attorney’s past repre-sentation of a “client.”

2. The Screened Lawyer Has Stayed at theSame Firm, Which Now Has Been Askedto Handle the Related Matter Againstthe Joint Defense Group Member.

When Lawyer A stays at the samefirm, the analysis under Rule 1.9 is thesame as it was when he changed firms:Lawyer A has no conflict under Rule 1.9because Employer was never Lawyer A’sclient. There is no Rule 1.9 conflict toimpute to other lawyers in the same firmunder Rule 1.10. However, Lawyer Awill have a personally disqualifying con-flict under Rule 1.7(b)(4) if his obliga-tions to third parties under the jointdefense agreement will, or reasonablymay, adversely affect his professionaljudgment on behalf of a client in a matteradverse to a joint defense group member.

As discussed above, an individuallawyer’s joint defense agreement conflictunder Rule 1.7(b)(4) is imputed to otherlawyers in the same law firm only if thepersonally disqualified lawyer’s obliga-tions under the joint defense agreement“present[] a significant risk of adverselyaffecting the representation of the clientby the remaining lawyers in the firm”Rule 1.10(a)(1). The analysis of whetherthis will occur in the second scenario(where the lawyer stayed at the samefirm) is complicated by two issues: (i) thepossibility that the firm itself is bound bythe joint defense agreement that one of itslawyers signed during an affiliation withthe firm; and (ii) the practical difficultyof establishing a retroactive screen.

Putting aside the signing lawyer’s indi-vidual obligations under a joint defenseagreement, the lawyer’s firm would needto consider carefully whether the firmand its other lawyers had any confiden-tiality or other relevant obligations underan agreement signed by a firm lawyerduring the lawyer’s practice with thefirm. That analysis cannot be done in theabstract without reference to the terms ofa specific agreement. However, it isunlikely that a firm could allow lawyerswho had not participated in the prior rep-resentation to search the firm’s filesrespecting that representation for infor-mation that would be useful in the case

resentation of the client in the proposed matter—such as prohibiting the lawyer from using on theclient’s behalf relevant confidential information ofwhich the lawyer is aware—Rule 1.7(c) will requirean informed consent from the client in the matter. Ifthe terms of the release place too many restrictionson the lawyer’s proposed representation, the lawyerwill not be able to satisfy the Rule 1.7(c)(2) require-ment that he or she “reasonably believe[ ] that thelawyer will be able to provide competent and dili-gent representation . . . .” In such event, the lawyerwould have to decline the representation.

11Strictly speaking, a screen is not necessary if

the personally disqualified lawyer avoids participa-tion in the new matter and does not reveal any con-fidential information about the prior matter to thelawyer’s colleagues, thereby fulfilling the lawyer’sown obligations under the joint defense agreement.However, use of a screen is prudent to remind thepersonally disqualified lawyer of his obligations, toalert the involved lawyers to the existence of theissue, and to confirm their commitment to take extracare in the screened lawyer’s presence.

12If the litigation did involve or adversely affect

the lawyer’s former client, the lawyer and the firmwould be required to conduct an analysis underRule 1.9 to determine whether the new matter couldbe accepted. Such adversity to the former clientcould exist if the representation of the new clientexposed the former client to claims by other mem-bers of the joint defense group based on an allegedbreach of the joint defense agreement. See alsoABA Formal Opinion 95-395, supra.

October 2009 THE DISTRICT OF COLUMBIA BAR 327

against the joint defense group partici-pant. Moreover, to the extent that infor-mation obtained pursuant to a jointdefense agreement is protected underRule 1.6, the firm and its other lawyerswould be precluded from using thatinformation for the advantage of anotherclient, unless the former client’s consenthas been obtained or certain other Rule1.6 exceptions apply.

In addition, the original firm’s owninvolvement in the criminal investiga-tion—through the then-and still-associat-ed lawyer and any other firm attorneys orstaff who participated in the representa-tion – would raise questions about thetimeliness and effectiveness of anyscreen it might erect to block the attor-neys who planned to handle the substan-tially related litigation against Employerfrom exposure to confidential informa-tion arising from the earlier matter. Whilethe firm could take steps to prevent futurediscussions of the past matter with the lit-igators on the new matter, it would alsoneed to be sure that none of them wasexposed to information about the case inthe past, when there might not have beenany reason to take extra steps to keepthem from hearing about or discussingthe criminal matter that was being han-dled by others in that firm.

Thus, in this scenario, the law firmlikely would be precluded from undertak-ing the representation unless the law firmcould conclude: (i) it and its otherlawyers are not bound by the jointdefense agreement; and (ii) none of theother lawyers had been exposed to anyconfidential information relating to thejoint defense agreement.

This is an issue that could have beenclarified by the terms of the joint defenseagreement. The law firm in this scenariowould have more options if the jointdefense agreement provided that:

(1) Screens would be erected withinthe firm so that only the participatinglawyer and certain other named individ-uals associated with the firm would haveaccess to confidential joint defenseinformation; and(2) Nothing in the joint defenseagreement would preclude screenedlawyers in the firm from undertaking lit-igation and other matters adverse tonon-client members of the joint defensegroup, including matters that might bedeemed to be substantially related to thematter that is the subject of the jointdefense agreement.

We acknowledge that it may be diffi-cult in many circumstances to get poten-

tial joint defense group members to agreeto such an approach.

Conclusion

Under the D.C. Rules, joint defenseagreements with non-clients do not create“former client” conflicts for lawyers as tothose non-clients under Rule 1.9. Jointdefense agreements may create obliga-tions to a third party, however, that willcause the individual participating lawyerto have a conflict under Rule 1.7(b)(4) ina proposed new matter adverse to thejoint defense group member. However,such conflicts are imputed to otherlawyers in the same law firm only if thepersonally disqualified lawyer’s obliga-tions under the joint defense agreement“present a significant risk of adverselyaffecting the representation of the clientby the remaining lawyers in the lawfirm.” Rule 1.10(a)(1). Where the jointdefense group matter was handled by thepersonally disqualified lawyer while at adifferent law firm, the lawyer’s new firmmay avoid any imputed disqualificationby screening the lawyer from the newmatter. When the personally disqualifiedlawyer remains at the same law firm,however, other lawyers at that firm whoare considering undertaking the new mat-ter adverse to the joint defense groupmember likely will face a disqualifyingconflict under Rule 1.7(b)(4) unless it isclear that: (i) none of them has any obli-gations under the joint defense agreementsigned by another lawyer in the samefirm; and (ii) none of them was exposedto confidential information about the pastrepresentation.

Inquiry No. 09-02-12Published: September 2009

Opinion 350

Whether A Lawyer Is Obliged To Sur-render To A Former Client Work-Product Procured Through The FormerClient’s Factual Misrepresentations

A lawyer who drafted a brief and affi-davit in reliance upon fraudulent factualmisrepresentations made by a formerclient has no duty under Rule 1.16(d) tosurrender these documents to the client.Rule 1.2 prevents a lawyer from assistinga client in conduct that the lawyer knowsis fraudulent. Such conduct includesassisting a client in drafting or deliveringdocuments that the lawyer knows arefraudulent. The lawyer may: (1) if practi-cable and effective, redact all portions of

the documents containing misrepresenta-tions and surrender to the client only theredacted documents; (2) if redaction isimpractical or ineffective, refuse to pro-duce the entire document to the client; or(3) if the client consents or Rule 1.6(d) isapplicable, turn over the unredacted doc-ument(s) to the former client’s successorcounsel with full disclosure as to thefraud contained in the document(s). Thelawyer should also write the clientdemanding the immediate destruction orreturn of all prior drafts of documentscontaining the misrepresentations anddirecting the client not to file such docu-ments with the court.

Applicable Rules• 1.0(f) Definition of Terms• 1.2(e) Assisting Wrongful Conduct

by Client• 1.6(d) Confidentiality• 1.16(d) Termination of Representation• 3.3(a) Candor to Tribunal

Inquiry

After drafting a brief and affidavitwhich included various material factualrepresentations asserted by the client, alawyer discovered that those representa-tions were false and, refusing to file suchfraudulent documents with the court, thelawyer withdrew from the representation.The former client now demands that thelawyer surrender these documents, butthe lawyer has reason to believe, thoughnot actual knowledge, that the formerclient intends to file the brief and affi-davit in going forward with the case. Theclient did not owe the lawyer any out-standing legal fees at the time the lawyerterminated the representation.

Discussion

Pursuant to Rule 1.16(d):

In connection with any termination ofrepresentation, a lawyer shall take time-ly steps to the extent reasonably practi-cable to protect a client’s interests, suchas . . . surrendering papers and propertyto which the client is entitled. . . .1

The Legal Ethics Committee has con-sistently determined that under the Dis-trict of Columbia Rules of ProfessionalConduct, the entire file belongs to theclient and must be surrendered to theclient upon termination of the representa-tion, unless the client has agreed other-wise or unless the lawyer is permitted by

328 THE DISTRICT OF COLUMBIA BAR December 2009

1Emphasis added.

Rule 1.8(i) to retain unpaid attorney workproduct.2 Here the Committee is present-ed, however, with the narrow question ofwhether a former client is entitled to alawyer’s work product containing fraud-ulent misrepresentations or omissions.We conclude that he is not.

The lawyer’s duty to remove misrepre-sentations before surrendering the docu-ments arises under Rule 1.2(e), whichprohibits the lawyer from assisting aclient “in conduct that the lawyer knowsis criminal or fraudulent.” Particularlyinstructive is Comment [7], which pro-vides that “the lawyer is required to avoidassisting the client, for example, by draft-ing or delivering documents that thelawyer knows are fraudulent.”

Additionally, Rule 3.3(a)(1) prohibits alawyer from “knowingly mak[ing] a falsestatement of fact or law to a tribunal . . .;”Rule 3.3(a)(2) prohibits a lawyer from“knowingly . . . assist[ing] a client toengage in conduct that the lawyer knowsis criminal or fraudulent . . .” (emphasisadded); and Rule 3.3(a)(4) prohibits alawyer from “offer[ing] evidence that thelawyer knows to be false.” We concludethat a lawyer who knows that the formerclient’s representations are false and hasgood reason to believe that the formerclient (whether through another lawyer orpro se) intends to file the brief and affi-davit containing such misrepresentationswould violate Rule 3.3 by surrenderingsuch documents to the former client.3

Rather than decline to produce theentire document to the former client, the

lawyer may, where practicable and effec-tive, opt to redact all factual misrepresen-tations of which he knows—and all legalanalysis and discussion which rely uponor incorporate such misrepresentations—and surrender only such redacted affidavitand brief. An effective redaction is wherethe lawyer excises sufficient material,including context where necessary, suchthat the client cannot simply re-insert thefraudulent facts or misrepresentations andfile the brief essentially unchanged fromits original fraudulent form.4

Even where a lawyer acts with utmostdiligence to either withhold the entiredocument or surrender only a carefullyredacted version to the client, therenonetheless remains the potential for theformer client to use the lawyer’s past ser-vices to perpetrate a fraud upon the tribu-nal. For this reason, the lawyer shouldalso transmit a letter to the former clientdemanding that the former client imme-diately destroy or return all prior drafts ofdocuments containing or making use ofthe misrepresentations and directing theclient not to file the brief and affidavit, oran earlier draft thereof.5

In the event that the former clientattempts to perpetrate a fraud upon the

tribunal by filing the fraudulentlyobtained documents or by forwarding thedocuments to successor counsel for useon the client’s behalf, and if substantialinjury to another’s financial interests orproperty are reasonably certain to resultfrom the former client’s fraud, then Rule1.6(d) permits the original lawyer tomake disclosure of the fraud to successorcounsel or the tribunal, regardless ofclient consent. Specifically, Rule 1.6(d)provides:

When a client has used or is using alawyer’s services to further a crime orfraud, the lawyer may reveal client con-fidences and secrets, to the extent rea-sonably necessary:

(1) to prevent the client from com-mitting the crime or fraud if it is rea-sonably certain to result in substantialinjury to the financial interests orproperty of another; or(2) to prevent, mitigate, or rectifysubstantial injury to the financialinterests or property of another that isreasonably certain to result or hasresulted from the client’s commis-sion of the crime or fraud.

As such, disclosure is permitted, andnot mandated, in those circumstanceswhere substantial injury to a third party’sfinancial interests or property is reason-ably certain to result from the formerclient’s fraud, and any disclosure underthis rule must be limited to that which isreasonably necessary to prevent, miti-gate, or rectify the substantial injury.Alternatively, counsel may disclose thefraud to successor counsel, without con-cern for 1.6(d)’s limiting factor of rea-sonably certain substantial injury, ifcounsel obtains his former client’s con-sent to do so.

Conclusion

Rule 1.16(d) does not require a lawyerto surrender to a former client a brief andaffidavit that were fraudulently procuredthrough the client’s factual misrepresen-tations. Rather, the lawyer should (1) ifpracticable and effective, redact the sec-tions of the documents containing factu-al and legal misrepresentations andsurrender only those portions of the doc-uments not containing misrepresenta-tions to the former client, (2) if notpracticable or effective, withhold thedocuments in their entirety, or (3) if theclient consents or Rule 1.6(d) is applica-ble, turn the unredacted document(s)over to the former client’s successorcounsel with full disclosure of the fraudcontained in the document(s).

December 2009 THE DISTRICT OF COLUMBIA BAR 329

2See Legal Ethics Opinion 250 (Duty to Turn

Over Files of Former Client to New Lawyer WhenUnpaid Fees are Outstanding.); Legal Ethics Opin-ions 286 (Former Client Files) and Legal EthicsOpinion 333 (Surrendering Entire Client File UponTermination Of Representation). Rule 1.16(d) refer-ences Rule 1.8(i), which permits a lawyer—in verylimited circumstances—to retain his or her workproduct after the termination of the representationwhere the client failed to pay for such work product.In this case, however, there were no outstandinglegal fees owed by the client to the lawyer at thetime the lawyer terminated the representation.

3We recognize that having “good reason to

believe” a fact is different from having actualknowledge of it. See Rule 1.0(f) (defines “know-ingly” and “knows” as “actual knowledge of thefact in question,” which “may be inferred from thecircumstances.”) While, in the instant case, thelawyer lacks actual knowledge that the formerclient intends to use the work product in question,the lawyer does have actual knowledge that theclient fraudulently procured the lawyer’s workproduct. Under these circumstances, the lawyer’sactual knowledge of his client’s fraud, takentogether with his reasonable belief that the clientintends to file the documents, requires that thelawyer refuse to surrender the unredacted docu-ments to the client.

4This can be facilitated, for example, by “cut-

ting and pasting” the documents to excise the mis-representations or by drawing lines in indelible inkthrough the misrepresentations. The lawyer shouldalso indicate in the redacted document in someclear fashion that the redactions are being made toprevent fraud. The Committee recognizes that dis-tinguishing those portions of the document that theclient may otherwise be entitled to receive fromthose that are predicated on information that isfound to be fraudulent, may not always be easy andrequires some amount of professional discretion.Arguably, delivering remaining portions of docu-ments that appear to be truthful, but later turn out toalso contain misrepresentations may present somerisk that the lawyer may be deemed liable for thatinformation he “should have known” was false.However, we think such a standard is too broad anddoes not have a basis in the language of the rules.Whether redaction of a document is effective restsin the good faith judgment of the lawyer.

5Were the lawyer to discover that the client

filed an earlier draft of the fraudulent documents,the lawyer may reveal the client’s misrepresenta-tions “to prevent the client from committing thecrime or fraud if it is reasonably certain to result insubstantial injury to the financial interests or prop-erty of another” or “to prevent, mitigate or rectifysubstantial injury to the financial interests or prop-erty of another that is reasonably certain to result orhas resulted from the client’s commission of thecrime or fraud.” See Rule 1.6(d). A lawyer’s duty totake prompt remedial measures pursuant to Rule3.3(d) to correct a fraud perpetrated upon the tribu-nal does not apply here because a lawyer’s obliga-tion to remediate ends with the lawyer’swithdrawal from representation. See Comment [12]to Rule 3.3.

Opinion 351

Sharing Legal Fees with Clients

In the particular circumstances pre-sented, the payments to clients contem-plated by the inquiries below do notviolate Rule 5.4(a)’s prohibition againstsharing legal fees with nonlawyers.

Applicable Rules• Rule 1.5(a) (Fees)• Rule 1.8(d) (Conflict of Interest:

Specific Rules)• Rule 1.15(b) (Safekeeping Property)• Rule 5.4(a) (Professional Indepen-

dence of a Lawyer)

Inquiry

The Legal Ethics Committee (“Com-mittee”) has been asked whether two pro-posed payments by lawyers to theirclients violate the fee-sharing prohibitionof Rule 5.4(a) of the D.C. Rules of Pro-fessional Conduct (“D.C. Rules”).

Scenario One: Plaintiff and Lawyer Ahave a contingent fee agreement underwhich Lawyer is to receive one-third ofany recovery.1 Plaintiff is offered a$90,000 settlement by Defendant, butDefendant insists that the settlementagreement designate $60,000 as attorneyfees and $30,000 as compensatory dam-ages. (The Plaintiff’s claim arises undera “fee-shifting” statute that provides forattorney fees.) As contemplated by heragreement with Plaintiff, Lawyer Awants to retain only $30,000 in attor-ney’s fees (one-third) and allocate theother $30,000 (of designated “attorneyfees”) to Plaintiff. Plaintiff, therefore,would end up with $60,000 of the$90,000 settlement payment, as contem-plated by the contingent fee agreementmade by Plaintiff and Lawyer A at thebeginning of the engagement.

Scenario Two: Pro bono Lawyer Breceives attorney fees under a fee-shift-ing statute and wants to give the awardedfees to his client (“Client”), who is anindividual. Lawyer B has not made anadvance commitment to pay Client theattorney fee or any other sum.

Discussion

“A lawyer or law firm shall not sharelegal fees with a nonlawyer.” D.C. Rule5.4(a). One of the five exceptions to thisprohibition is relevant to, but not dispos-itive of, Scenario Two:

(5) A lawyer may share legal fees,whether awarded by a tribunal orreceived in settlement of a matter, with anonprofit organization that employed,retained, or recommended employmentof the lawyer in the matter and that qual-ifies under Section 501(c)(3) of theInternal Revenue Code.

The prohibition is intended “to protectthe lawyer’s professional independenceof judgment.” Comment [1] to D.C. Rule5.4; accord Comment [1] to ABA ModelRule 5.4; Restatement of the Law Gov-erning Lawyers § 10, cmt. b (2000)(“Restatement”). Other authorities havespoken of the need to ensure that thelawyer will control the litigation, thedeterrence of solicitation by nonlawyerintermediaries, and the protection ofclients from unreasonably high fees.Emmons, Williams, Mires & Leech v.California State Bar, 6 Cal. App. 3d 565,573-74, 86 Cal. Rptr. 367, 372 (Ct. App.1970); ABA Formal Op. 87-355 (1987);ABA Informal Op. 86-1519 (1986).

A Restatement comment on the prohi-bition focuses on the situation where thenonlawyer is entitled to share thelawyer’s fees—a situation that does notobtain in either scenario set out above:

A person entitled to share a lawyer’sfees is likely to attempt to influence thelawyer’s activities so as to maximizethose fees. That could lead to inade-quate legal services. The Sectionshould be construed so as to preventnonlawyer control over lawyers’ ser-vices, not to implement other goalssuch as preventing new and usefulways of providing legal services ormaking sure that nonlawyers do notprofit indirectly from legal services incircumstances and under arrangementspresenting no significant risk of harmto clients or third persons.

Restatement § 10, cmt. b (emphasisadded). Moreover, this Committee hascounseled against an unduly broad readingof Rule 5.4(a), D.C. Bar Legal Ethics Op.233 (1993), and the Virginia Bar’s ethicscommittee has said that “application ofRule 5.4(a) must move beyond a literalapplication of language of the provision toinclude also consideration of the founda-tional purpose for that provision.” Va.Legal Ethics Op. 1783 (2003); see

Emmons, Williams, Mires & Leech, 6 Cal.App. 3d at 575, 86 Cal. Rptr. at 373 (focus-ing on “policy objectives” of the rule).

Most federal fee-shifting laws makeattorney fee awards the property of theclient, rather than of the lawyer. CentralStates, Southeast and Southwest AreasPension Fund v. Central Cartage Co., 76F.3d 114, 116 (7th Cir. 1996) (Easter-brook, J.); see, e.g., Evans v. Jeff D., 475U.S. 717, 730 (1986) (Civil Rights Attor-ney’s Fee Awards Act of 1976, 42 U.S.C.§ 1988); Venegas v. Mitchell, 495 U.S.82, 87 (1990) (same).2 Some federal fee-shifting statutes, though, envisage awardsto the lawyer, e.g., Rodriguez v. Taylor,569 F.2d 1231, 1245 (3rd Cir. 1977) (AgeDiscrimination in Employment Act), andsome state laws do the same, e.g., Flan-nery v. Prentice, 28 P.3d 860, 862 (Cal.2001) (California Fair Employment andHousing Act).3 Awards made to theclient, of course, do not implicate Rule5.4(a). See Central States, 76 F.3d at 116(where statutory fees are client’s proper-ty, their contractual allocation betweenclient and lawyer does not raise a fee-splitting issue).

We do not think that either proposedpayment would constitute a prohibitedsharing of legal fees. In Scenario One,the “fee” for purposes of Rule 5.4(a) isthe amount agreed upon in advancebetween Plaintiff and Lawyer A. It is notthe sum designated in the settlementagreement as “attorney fees.” This is soeven if the applicable fee-shifting statuteassigns ownership of such funds to thelawyer. The fact of the advance agree-ment ensures that the proposed paymentwould not interfere with the lawyer’sindependence of judgment or contravenethe other rationales for the prohibition

330 THE DISTRICT OF COLUMBIA BAR December 2009

1Scenario One offers no explanation for Defen-

dant’s proposed allocation of the settlementamount. We express no view on the propriety ofDefendant’s proposed designation of $60,000 ofthe settlement amount as “attorney fees” and$30,000 as “compensatory damages,” or the propri-ety of any acquiescence by Plaintiff or Lawyer A inthat designation.

2The Supreme Court soon will consider

whether Equal Access to Justice Act (EAJA) feeawards belong to the lawyer or the client. CompareRatliff v. Astrue, 540 F.3d 800 (8th Cir. 2008)(EAJA awards are made to attorney, not client),cert. granted, 174 L. Ed. 2d 631, 2009 U.S. LEXIS5148, 78 U.S.L.W. 3169 (No. 08-1322) (Sept. 30,2009), and Marre v. United States, 117 F.3d 297,304 (5th Cir. 1997) (same), with Stephens v. Astrue,565 F.3d 131 (4th Cir. 2009) (EAJA awards aremade to client), and Reeves v. Astrue, 526 F.3d 732(11th Cir. 2008) (same). The Court’s decision inRatliff should not affect the conclusions of thisopinion. If EAJA fees are the property of the client,there presumably is no issue under Rule 5.4(a). Ifthe award is the property of the lawyer, this opinionpresumably will apply in respect of EAJA awardsin the same way it applies to awards under otherfee-shifting statutes.

3Flannery indicates that its rule can be varied by

“an enforceable agreement to the contrary” betweenlawyer and client. Flannery, 28 P.3d at 862.

that are noted above. Indeed, a failure byLawyer A to give Plaintiff $60,000 of the$90,000 settlement amount would violatethe contingent fee agreement, see Vene-gas, 495 U.S. 82 (lawyer and client mayagree to a fee that exceeds the amountultimately awarded under 42 U.S.C. §1988); Va. Legal Ethics Op. 1783 (2003)(sustaining payment to client of portionof “fee” received from adverse party thatexceeds fee contractually agreed uponbetween lawyer and client), might consti-tute an improper withholding of clientfunds in violation of Rule 1.15(b), see Inre Haar, 667 A.2d 1350 (D.C. 1995),and—given that $60,000 represents two-thirds of the settlement amount—mightconstitute an unreasonable fee in viola-tion of Rule 1.5(a).

In Scenario Two, we assume that thefee award to which the inquiry refers isthe property of Lawyer B rather thanClient. Otherwise there presumablywould be no issue under Rule 5.4(a). SeeCentral States, 76 F.3d at 116; Turner v.Secretary of the Air Force, 944 F.2d 804,808 (11th Cir. 1991) (court’s award ofstatutory attorney fees to client does notviolate prohibition on attorney’s splittingfees with client). Also, we understandthat there has been no advance commit-ment by Lawyer B to pay Client anamount equal to Lawyer B’s fee or, forthat matter, any amount. Accordingly, wethink the proposed payment is not thesharing of a fee but an ex gratia pay-ment.4 See National Treasury EmployeesUnion v. U.S. Dep’t of the Treasury, 656F.2d 848, 853-54 (D.C. Cir. 1981) (notingthat lawyers are not prohibited fromdonating their fees to charity or to theiremployers); Jordan v. United States Dep’tof Justice, 691 F.2d 514, 516 n. 14 (D.C.Cir. 1982) (same).

Finally, neither scenario implicatesRule 1.8(d)’s prohibition on advancing orguaranteeing financial assistance. This isbecause there is no indication in eitherinstance that the lawyer promised, letalone made or guaranteed, any such pay-ment while the litigation was pending.

This Committee’s charter limits it toaddressing whether the proposed pay-

ments violate the D.C. Rules. D.C. BarLegal Ethics Comm. R. A–1, C–4. Weaccordingly do not address such issues asthe tax consequences of the proposedpayments.

Conclusion

Accordingly, in the specific circum-stances presented by these inquiries, nei-ther proposed payment by a lawyer to theclient would violate the fee-sharing pro-hibition of D.C. Rule 5.4(a).

Adopted: November 2009

Opinion 352

Professional Responsibility Duties forTemporary Contract Lawyers and theFirms that Hire Them

The imputation of a temporary con-tract lawyer’s individual conflicts to ahiring firm under D.C. Rule 1.10 dependson the nature and extent of the lawyer’srelationship with the firm and the extentof the temporary lawyer’s access to thefirm’s confidential client information. Atemporary contract lawyer who workswith the same firm sporadically on a fewdifferent projects, or on a single projectfor a longer period of time, would not be“associated with” the hiring firm if thefirm does not have or otherwise createthe impression that the temporary con-tract lawyer has a continuing relationshipwith the firm, and the firm institutesappropriate safeguards to ensure that thetemporary contract lawyer does not haveaccess to the firm’s confidential clientinformation except for the specific matteror matters on which he is working.

In addition, the temporary contractlawyer and the hiring firm must protectthe confidentiality of all client informa-tion, and the firm must take appropriatesteps to avoid obtaining the confidencesand secrets the temporary contract lawyerlearned during his former employment.

Applicable Rules• Rule 1.6 (Confidentiality of

Information)• Rule 1.9 (Duties to Former Clients)• Rule 1.10 (Imputed Disqualification:

General Rule)• Rule 4.4 (Respect for Rights of

Third Persons)

Inquiry

The Committee has received aninquiry from a temporary contract lawyer

who works for Law Firm A, which is rep-resenting a party in a multi-party case.The project the temporary contract attor-ney was hired to perform ends, and LawFirm A terminates the contract. The liti-gation of the case continues. Law Firm B,a firm representing another party adverseto the party Law Firm A represents in thesame or a substantially related case,wants to hire the temporary contractlawyer to perform work on an unrelatedmatter.1

The temporary contract lawyer wouldwork solely on a single matter for LawFirm B, performing tasks such as digest-ing transcripts and reviewing discoverydocuments for responsiveness and privi-lege. The temporary contract lawyerworks through a number of temporaryservice agencies that have an arrange-ment under which Law Firm B pays forthe temporary contract lawyer’s services.

The temporary contract lawyer mightwork for Law Firm B at a satellite office,essentially a warehouse resembling a callcenter, but with computer terminalsinstead of telephones. Alternatively, thetemporary contract lawyer might work ina conference room or other utility spaceonsite at Law Firm B set up specificallyfor the project that is segregated from therest of the firm’s premises. The docu-ments pertaining to the temporary con-tract lawyer’s assignment would beaccessed electronically by a secure linerestricted to review of the documentsonly for the single unrelated matter. Onthe basis of these facts, the temporarycontract lawyer asks whether his individ-ual conflicts would be imputed to LawFirm B under D.C. Rule 1.10(b).

The Committee also recognizes thatbecause of the imputation provisions ofD.C. Rule 1.10(b), temporary contractlawyers often may have difficulty surviv-ing a firm’s conflict review processbecause they frequently move from onelaw firm to another and repeatedly gothrough the conflicts review process. As aresult, their ability to find work may besignificantly restricted. Therefore, wealso provide some general guidanceregarding the circumstances when a tem-porary contract lawyer may be “associat-

April 2010 THE DISTRICT OF COLUMBIA BAR 331

4Given the express, specific exception in Rule

5.4(a)(5) for payments to certain charitable organi-zations, though, we think the proposed paymentwould be prohibited by Rule 5.4(a) had it beenagreed upon between Lawyer B and Client, an indi-vidual, or promised by Lawyer B, in advance. Thisis because a limited express exception ordinarilymeans that other, similar potential exceptions arenot granted. The relevant legal maxim is expressiounius est exclusio alterius (i.e., the expression ofone thing implies the exclusion of others).

1The temporary contract lawyer is personally

prohibited from working on the same or substan-tially related matter for an adverse party under D.C.Rule 1.9, unless the former client consents. SeeD.C. Rule 1.9 (“A lawyer who has previously rep-resented a client in a matter shall not representanother person in the same or a substantially relat-ed matter in which that person’s interests are mate-rially adverse to the interests of the former clientunless the former client gives informed consent.”).

ed with” a hiring firm, and his conflictsaccordingly imputed to the firm.

Discussion

In Opinion 284, the Committeedefined a “temporary lawyer” as:

one who is not a partner and who isemployed by a practitioner or a law firmto work on either a specific project ormatter or for a fixed or otherwise limit-ed period of time. If the relationship isexpected to last indefinitely, regardlessof whether it actually does, the [lawyeris not considered to be a temporarylawyer].

D.C. Legal Ethics Opinion 284 (1998).The Committee noted that part-timelawyers who work exclusively with onefirm for an indefinite period of time arenot temporary lawyers. The Committeepointed out that a “temporary lawyer maybe hired directly or through an employ-ment agency for a fee, and may be paiddirectly by the law firm or by theagency.” Id. The Committee also recog-nized that there is wide array of employ-ment arrangements between hiring firmsand temporary contract lawyers. Id. As aresult, whether a temporary contractlawyer is “associated with” a firm willdepend on the facts and circumstances ofeach situation.

D.C. Rule 1.10(b) governs the imputa-tion of conflicts for lawyers moving fromone firm to another. The rule provides inrelevant part:

When a lawyer becomes associated witha firm, the firm may not knowingly rep-resent a person in a matter which is thesame as, or substantially related to, amatter with respect to which the lawyerhad previously represented a clientwhose interests are materially adverse tothat person and about whom the lawyerin fact acquired information protectedby Rule 1.6 that is material to the matter.

Thus, typically, if a lawyer leaves onelaw firm to work at another law firm, thelawyer’s new firm would be prohibitedfrom representing a client with interestsmaterially adverse to those of thelawyer’s former client in the same or sub-stantially related matter if the lawyer hasmaterial confidential information aboutthe matter. See D.C. Rule 1.10, cmt. [17](“[U]nder paragraph (b), if a lawyer leftone firm for another, the new affiliationwould preclude the lawyer’s new firmfrom continuing to represent clients withinterests materially adverse to those ofthe lawyer’s former clients in the same or

substantially related matters.”); D.C.Rule 1.10, cmt. [15] (“The provisions ofparagraphs (b) and (c) which refer to pos-session of protected information operateto disqualify the firm only when thelawyer involved has actual knowledge ofinformation protected by Rule 1.6.”);D.C. Rule 1.6 (“Except when permittedunder paragraph (c), (d), or (e), a lawyershall not knowingly: (1) reveal a confi-dence or secret of the lawyer’s client; (2)use a confidence or secret of the lawyer’sclient to the disadvantage of the client;(3) use a confidence or secret of thelawyer’s client for the advantage of thelawyer or of a third person.”)2

D.C. Rule 1.10(b) applies only when alawyer is “associated with a firm.” Com-ment [1] to D.C. Rule 1.10 provides guid-ance regarding when lawyers areassociated in a firm:

[T]wo practitioners who share officespace and occasionally consult or assisteach other ordinarily would not beregarded as constituting a firm. Howev-er, if they present themselves to the pub-lic in a way suggesting that they are afirm or conduct themselves as a firm,they should be regarded as a firm forpurposes of the Rules. The terms of anyformal agreement between associatedlawyers are relevant in determiningwhether they are a firm, as is the factthat they have mutual access to confi-dential information concerning theclients they serve.

D.C. Rule 1.10, cmt. [1].The Committee previously has consid-

ered whether a contract lawyer would beassociated with a firm under D.C. Rule1.10(a)3 where a law firm sought to hire aformer firm lawyer on a contract basis toassist in providing legal services to someof the firm’s clients. See D.C. LegalEthics Opinion 255 (1995). In that situa-tion, the former lawyer was not includedon the firm’s letterhead or in other list-

ings of the firm’s lawyers. The firmscreened the lawyer from confidentialinformation about firm clients on mattersin which he was not employed as an inde-pendent contractor. Id. In addition, thefirm’s promotional materials and lettersto clients that mentioned his availabilitywould make clear that he was available towork on specific matters on a case-by-case basis and that he was not going tohave a continuing relationship with thefirm. Id. Based on these facts, the Com-mittee concluded that:

[T]he association of a lawyer with a firmon an ad hoc, case-by-case basis doesnot create that kind of continuing rela-tionship, triggering imputation underSection 1.10 of the individual lawyer’sdisqualifications to the firm–except withrespect to the individual matters onwhich the lawyer is associated with thefirm–so long as the firm does not createthe impression among its clients or thepublic at large that such a continuingrelationship exists.

Id.The Committee also has addressed

whether attorneys who share office spaceand/or services are associated in a firmunder D.C. Rule 1.10. See D.C. LegalEthics Opinion 303 (2001). The Commit-tee opined that attorneys participating insuch arrangements must take all stepsreasonably necessary to protect the confi-dentiality of their individual client infor-mation and the independence of theirrespective practices. Id. The Committeeadded that any sharing arrangementsshould be structured to avoid creating theimpression that the attorneys are affiliat-ed with one another. Id. The Committeeconcluded that office- and/orservice–sharing arrangements could cre-ate imputed conflicts for the participatingattorneys, but noted that any particularsituation would have to be evaluated on acase-by-case basis.Id.

As the comment to Rule 1.10 and ourprior opinions suggest, whether a tempo-rary contract attorney is “associatedwith” a hiring firm will depend on thescope of the attorney’s relationship withthe firm, the length of the attorney’s ser-vice to the firm, and the potential for hisexposure to the firm’s confidential clientinformation. The analysis is not affectedby whether the hiring firm or a contract-ing agency directly pays the temporarycontract lawyer.

In the specific situation presented bythis inquiry, the temporary contractlawyer does not have a past or ongoingassociation with Law Firm B. Law Firm

332 THE DISTRICT OF COLUMBIA BAR April 2010

2The clients may waive a firm’s disqualification

under D.C. Rule 1.10. See D.C. Rule 1.10(d) (“Adisqualification prescribed by this rule may bewaived by the affected client under the conditionsstated in Rule 1.7.”).

3D.C. Rule 1.10(a) provides that: “While

lawyers are associated in a firm, none of them shallknowingly represent a client when any one of thempracticing alone would be prohibited from doing soby Rules 1.7 or 1.9, unless: (1) the prohibition ofthe individual lawyer’s representation is based onan interest of the lawyer described in Rule 1.7(b)(4)and that interest does not present a significant riskof adversly affecting the representation of the clientby the remaining lawyers in the firm; or (2) the rep-resentation is permitted by Rules 1.11, 1.12, or1.18.”

B hired him to work on one project oflimited duration. He will work in a sepa-rate location away from the firm’s officespace or in a segregated area within thefirm. His electronic access to the firm andthe confidential information of its clientsis confined to the specific project onwhich he is working. We think that in thiscircumstance the temporary contractlawyer would not be “associated with”the hiring firm (Law Firm B), and thus,his conflicts would not be imputed toLaw Firm B under D.C. Rule 1.10(b).Accordingly, the hiring firm must con-duct a conflict check only for the matterson which the temporary contract lawyerwill be working for the firm.

On the other hand, a temporary con-tract lawyer who is located in a firm’soffice space, works simultaneously onmultiple projects for the firm, is listed onthe firm’s website or other directories,and has access to the firm’s e-mail sys-tem and electronic documents would be“associated with” the contracting firm.

In contrast, a temporary contractlawyer who works intermittently with thesame firm on a small number of projectsor on one long-term assignment wouldnot be “associated with” the contractingfirm so long as the firm does not have anongoing relationship with the temporarycontract lawyer. The contracting firmalso must avoid creating the impressionthat the temporary contract lawyer is“associated with” the firm by listing himon the firm’s letterhead, website or otherdirectories, permitting him to use thefirm’s business cards, or introducing himto clients and others as a long-term mem-ber of the firm. In addition, the firm musttake all appropriate steps to ensure thatthe temporary contract lawyer has accessonly to the confidential client informa-tion for the matter on which he is work-ing.4

In circumstances where a temporarycontract lawyer is not “associated with”the hiring firm, the temporary contractlawyer and the hiring firm still have pro-fessional responsibility obligations. Thetemporary contract lawyer must preserveany confidential client informationlearned during his prior employment.

See D.C. Rule 1.6(g) (“The lawyer’s obli-gation to preserve the client’s confi-dences and secrets continues aftertermination of the lawyer’s employ-ment.”); D.C. Rule 1.10, cmt. [16](“Independent of the question of disqual-ification of a firm, a lawyer changingprofessional association has a continuingduty to preserve confidentiality of infor-mation about a client formerly represent-ed. See Rule 1.6.”).

The law firm must institute safeguardsto prevent the improper disclosure ormisuse of the firm’s confidential clientinformation, including talking with thetemporary contract lawyer about his dutyto avoid obtaining such information andexecuting a confidentiality agreementmemorializing this understanding. SeeD.C. Rule 4.4(a) (“In representing aclient . . . a lawyer shall not knowinglyuse methods of obtaining evidence thatviolate the legal rights of . . . a [third] per-son.”). If the temporary contract lawyeris located in the firm’s office space, thefirm must take extra precautions toensure that the temporary contract lawyerwill not have access to the firm’s confi-dential client information. The firmshould locate the temporary contractlawyer in a place that is plainly designat-ed for the temporary contract lawyer sothat firm personnel will not leave confi-dential information in that space. Othersafeguards might include securing filecabinets and storage areas containingconfidential client files, notifying attor-neys and staff not to discuss the firm’scases with the temporary contract lawyer,instructing attorneys and staff about theirobligations to preserve the confidentialinformation of the firm’s clients andmaintaining appropriate oversight overfirm employees to ensure that they com-ply with these obligations. See, e.g. D.C.Legal Ethics Opinion 279 (1998) (dis-cussing elements of an effective screen toavoid imputed conflicts).

The hiring firm also must take steps toavoid obtaining any confidential clientinformation the temporary contract attor-ney learned during his former employ-ment. See D.C. Rule 4.4(a); D.C. LegalEthics Opinion 285 (1998) (Rule 4.4prohibits attorneys in law firms that hireformer government employees with con-fidential government information frominducing the employee to disclose privi-leged or statutorily protected informa-tion); D.C. Legal Ethics Opinion 227(1992) (opining that firm must notexploit any confidences or secrets para-legal obtained during her formeremployment).

Conclusion

Whether a temporary contract attorneyis “associated with” the hiring firm pur-suant to D.C. Rule 1.10(b) is a fact-boundinquiry and will depend on the scope andnature of the temporary contract attor-ney’s relationship with the firm and thepotential for his exposure to the confi-dences and secrets of the firm’s clientsfor matters on which he is not working.When a temporary contract lawyer workson a single project for a firm, is physical-ly segregated from the firm’s officespace, and has no access to the confiden-tial information of the firm’s otherclients, he would not be associated withthe contracting firm, and his conflictswould not be imputed under D.C. Rule1.10(b).

The temporary contract lawyer and thehiring firm must preserve any confidentialclient information, and the firm shouldemploy appropriate prophylactic meas-ures to secure such information. The hir-ing firm also should take appropriatesteps to protect the confidential informa-tion the temporary contract lawyerlearned during his prior employment.

Opinion 353

Whether a lawyer representing aclient with diminished capacity canseek the appointment of a substitutesurrogate decision-maker when thecurrent surrogate decision-maker ismaking decisions for the client againstthe advice of the lawyer

A lawyer representing an incapacitatedperson with a surrogate decision-makershould ordinarily look to the client’s cho-sen surrogate decision-maker for deci-sions on behalf of the client and accordthe surrogate decision-maker’s choicesthe same weight as those of a client whenthe client is unable to express, or does notexpress, a contrary view. A lawyer maynot substitute her judgment for the judg-ment of the surrogate decision-makerwhen the surrogate decision-maker is act-ing within the scope of the power afford-ed to her by law, was selected by theincapacitated person before becomingincapacitated, and is not engaged in con-duct creating a risk of substantial harm oracting in a manner that would otherwiserequire a lawyer to withdraw from repre-sentation of a client acting in the samemanner. If the surrogate decision-makeris engaged in conduct creating a risk ofsubstantial harm or acting in a mannerthat would otherwise require a lawyer to

April 2010 THE DISTRICT OF COLUMBIA BAR 333

4Some firms may not have off-site space for

temporary contract lawyers, and the firm’s premis-es may not be equipped to accommodate a segre-gated space for them. In this instance, a hiring firmmay avoid imputation of the temporary contractlawyer’s conflicts only if the firm can demonstratethat alternative physical arrangements were not fea-sible, and it employs the prophylactic measures dis-cussed in this opinion or their functionalequivalent.

withdraw from representation of a clientacting in the same manner, then thelawyer may take protective action includ-ing seeking a substitute decision-maker.The lawyer may not withdraw because awithdrawal will substantially harm theclient and no grounds for a prejudicialwithdrawal under Rule 1.16(b) exist.

Applicable Rules • Rule 1.2 (Scope of Representation)• Rule 1.14 (Client with Diminished

Capacity)• Rule 1.16 (Declining or Terminating

Representation)

The Inquiry

A lawyer has requested guidance forresolving the following dilemma: thelawyer was hired by a durable power ofattorney agent (POA agent) to representan elderly incapacitated individual in aforeclosure suit involving that individ-ual’s residence.1 The client is unable tocommunicate. The POA agent is theclient’s granddaughter as well as theclient’s primary caregiver. The clientselected her granddaughter to be herPOA agent before the client became inca-pacitated. The lawyer filed suit on theclient’s behalf alleging that the mortgagewas an unconscionable, predatory homeloan. The mortgage company is defend-ing against the suit claiming the mort-gage was fair, the family knew about theterms, and the family, including the POAagent, spent the money on themselves.According to the inquirer the familydenies the allegations but the allegationshave tainted the litigation. To improve

the atmospherics and maintain the focusof the litigation on the nature of the loan,the lawyer asked the POA agent to resignin favor of an independent agent to pres-ent a “clean” agent to the court. ThePOA agent refused. The lawyer asks ifhe can or must withdraw based on thePOA agent’s alleged bad acts or whetherhe may pursue a substitute guardianshipin spite of the POA agent’s refusal to stepdown.

The question of pursuing a substituteguardian under these circumstances isone for which there is no clear answer.Instead a lawyer in this situation mustengage in reasonable deliberationemploying the framework provided byRule 1.14. The lawyer could use informa-tion derived from the allegations made bythe defendants to present to the court anex parte request for a substitute guardianfor the limited purpose of pursuing theforeclosure litigation. Alternatively, thelawyer could pursue the litigation withthe current POA agent in place. As wediscuss below, the choice between thetwo options depends on a reasonedassessment of the risks attendant to pro-ceeding with the current POA agentweighed against the previously expressedwishes of the incapacitated person whenshe selected her POA agent.2

Discussion

The D.C. Rules of Professional Con-duct regulate most aspects of the attor-ney-client relationship. Most dutiesimposed run from attorneys to clients. Inits simplest form, a legally competentclient hires a lawyer or firm to perform adistinct legal task. In such instances, it iseasy to identify the client, and the clienthas no difficulty communicating with theattorney and making decisions regardingthe representation.

Rule 1.14 addresses circumstances,such as those presented by this inquiry,when this paradigm breaks down. The

Rule does so by creating a framework formodifying the ordinary relationship. Inthe first instance, the Rule directs that a“lawyer shall, as far as reasonably possi-ble, maintain a typical client-lawyer rela-tionship with the client” when “a client’scapacity to make adequately considereddecisions in connection with a represen-tation is diminished.” D.C. Rule 1.14(a). As explained in the treatise The Law ofLawyering

Rule 1.14(a) establishes a preference formaintaining client-lawyer relationshipsthat are normal ‘as far as reasonablypossible.’ At some point, however, theability of a disabled client to communi-cate or to take action is so limited thatassigning that person the role of ‘client’is a mere formality . . . . At that point,Rule 1.14(b) permits a lawyer to seekguidance from a guardian or to takeother ‘protective action.’

Geoffrey C. Hazard, Jr. & W. WilliamHodes, The Law of Lawyering, 18-4.1(3rd ed. Supp. 2004-2).

Rule 1.14 does not specifically addressthe role of the surrogate decision-maker.The comments to the Rule, however,state that “[i]f a surrogate decision-makerhas already been appointed for the client,the lawyer should ordinarily look to thatperson for decisions on behalf of theclient. . .[but] the lawyer should consultwith the represented person to the maxi-mum extent possible, as indicated incomment [2] above.” D.C. Rule 1.14,Comment [4].

Comment [2] instructs that

[t]he fact that a client suffers a disabilitydoes not diminish the lawyer’s obliga-tion to treat the client with attention andrespect. Even if the person has a surro-gate decision-maker, the lawyer shouldas far as possible accord the representedperson the status of client, particularly inmaintaining communication. “Surro-gate decision-maker” denotes an indi-vidual or entity appointed by a court orotherwise authorized by law to makeimportant decisions on behalf of an indi-vidual who lacks capacity to make deci-sions in one or more significant areas ofhis or her life.

D.C. Rule 1.14, Comment [2]. Thus, ashere, when a client who has a POA agentis incapable of communicating with thelawyer, the lawyer would “ordinarily”look to the POA agent for all decisionsmade by a client.

The question of whether to seek achange in the POA agent for purposes of

334 THE DISTRICT OF COLUMBIA BAR April 2010

1We assume that the only client of the lawyer in

this matter is the incapacitated person. In thisinstance, it is possible, absent clear instructions tothe contrary, that the POA agent may believe she isalso a client. The POA agent is not a lawyer andalthough the retainer agreement identifies the inca-pacitated person as the client, the verified com-plaint and discovery responses are signed and/orsworn to by the POA agent; the POA agent hasbeen told that her communications with the lawyerare confidential; the communications between thePOA agent and the lawyer have been treated asconfidential by opposing parties; the POA agentlives in the residence that is the subject of the liti-gation; and the POA agent initiated the representa-tion and signed the retainer on behalf of the clientwho is the owner of the home. If there is an attor-ney-client relationship with the POA agent as wellas with the incapacitated person, a different analy-sis would apply and the rules governing conflictswould have to be analyzed. Because “[p]rinciplesof substantive law external to [the D.C. Rules ofProfessional Conduct] determine whether a client-lawyer relationship exists” we do not assesswhether the POA agent is also a client of thelawyer. D.C. Rule 1.6 Comment [9].

2For purposes of this opinion, we make several

assumptions that shape the analysis. First, weassume that the POA agent has the legal authorityunder District of Columbia law to make the deci-sions discussed in this opinion for the client. SeeD.C. Code § 21-2001 et seq. (Guardianship, Pro-tective Proceedings and Durable Power of Attor-ney). Second, we assume that the client is entirelyunable to communicate her desires. Third, weassume that there is no other source of informationabout the client’s desires with respect to the houseor the litigation to prevent the foreclosure. Forexample, that she had not previously written outher desires about her home. And, finally, weassume as noted above that the only client of thelawyer in this matter is the incapacitated person.

pursuing this litigation is a decision forwhich, under a normal attorney-clientrelationship, the attorney must defer tothe client. Rule 1.2 requires that a lawyer“abide by a client’s decisions concerningthe objectives of representation . . . andshall consult with the client as to themeans by which they are to be pursued.”D.C. Rule 1.2(a). Comment [1] to D.C.Rule 1.2 addresses the distinctionbetween the objective and means:

A clear distinction between objectivesand means sometimes cannot be drawn,and in many cases the client-lawyerrelationship partakes of a joint undertak-ing. In questions of means, the lawyershould assume responsibility for techni-cal and legal tactical issues, but shoulddefer to the client regarding such ques-tions as the expense to be incurred andconcern for third persons who might beadversely affected.

D.C. Rule 1.2, Comment [1]. Thoughcharacterized by the inquirer as a meansto advance the foreclosure litigation,replacing the POA agent is an objectiveof representation, as well as a means toadvancing the foreclosure suit. As ameans it is closer to “such questions asthe expense to be incurred and concernfor third persons who might be adverselyaffected” than it is to “technical and legalstrategy.” Thus in this circumstance thelawyer would typically “defer to theclient,” which, under these facts, means“ordinarily” looking to the POA agent forthe decision.3

We are presented with the question ofwhether a disagreement between thelawyer and the surrogate decision-makeron a matter that is for the client to decideis an extraordinary circumstance in whichthe lawyer should not abide by the surro-gate decision-maker’s wishes on behalf ofa client with diminished capacity. Thetenor of Rule 1.14 and the comments tothe Rule make clear that the drafters envi-sioned extraordinary circumstances asthose in which the client disagrees withthe surrogate decision-maker and mayhave the capacity to make decisions onthe particular issue in dispute.4 That is notthe circumstance presented here.

Rule 1.14 and the comments alsoaddress the ability of a lawyer to takeprotective action for a client with dimin-ished capacity who does not have a POAagent. Rule 1.14 permits protectiveaction “when the lawyer reasonablybelieves that the client has diminishedcapacity” and “is at risk of substantialphysical, financial or other harm unlessaction is taken . . .” D.C. Rule 1.14 (b).If this threshold is met, the lawyer may“consult[] with individuals or entities thathave the ability to take action to protectthe client and, in appropriate cases, seekthe appointment of a surrogate decision-maker.” Id. Neither the Rule nor the com-ments explicitly address the circumstancehere, namely that there is a surrogatedecision-maker who is acting within herauthorized power but refuses to followthe advice of counsel.

The tension presented by this inquiryis described in The Law of Lawyering.

When the three-way relationship isfunctioning properly, the guardian canbe thought of as the “primary client”, asdescribed in §2,7, while the impairedperson—or perhaps the best interests ofthe impaired person—becomes the“derivative” client. The lawyer func-tions appropriately by assisting the pri-mary client in carrying out his“objectives,” which the law assumeswill usually be in the best interests of thedisabled person. When the person’s dis-ability is so severe that there is not evenan ability to formulate or communicateideas, the lawyer should realize that theguardian is no more capable of ascer-taining the person’s best interests than isthe lawyer, but neither is he any lessable to do so. In this context the “bestinterest” of the disabled person is anabstraction, and the lawyer has no spe-cial ability to second-guess on behalf ofthe derivative client.

On the other hand, there may be cases inwhich it is obvious where the disabled

person’s best interests lie, and that theguardian is acting contrary to them. Insuch cases (a conservator looting hisward’s estate is the most obvious exam-ple), the lawyer may have a duty to actadversely to one client in order to servethe other, as in other situations involvingprimary and derivative clients.

Hazard & Hodes, The Law of Lawyering,18-16 (emphasis in the original).

Is failing to follow the advice of theattorney in this circumstance obviouslycontrary to the incapacitated person’sinterests such that the lawyer can takeaction counter to the POA agent’s direc-tion? We think the answer comes fromthe guidance provided in Rule 1.14 fortaking protective action.

When the lawyer reasonably believesthat the client has diminished capacity,is at risk of substantial physical, finan-cial or other harm unless action is takenand cannot adequately act in the client’sown interest, the lawyer may take rea-sonably necessary protective action,including consulting with individuals orentities that have the ability to takeaction to protect the client and, in appro-priate cases, seeking the appointment ofa surrogate decision-maker.

D.C. Rule 1.14(b).

It could be argued that the POA agenthas a conflict of interest with the clientwith respect to this decision and shouldremove herself as the surrogate decision-maker. On the other hand, the POA agentis the client’s granddaughter. She liveswith her grandmother. She has an interestin winning the litigation. She is the pri-mary caregiver. The client selected her asthe POA agent before the client becameincapacitated. Maintaining her role as thePOA agent is consistent with “respectingthe client’s family and social connec-tions” and with “the wishes and values ofthe client to the extent known.” D.C.Rule 1.14, Comment [5].5 Although thesurrogate decision-maker is not com-pletely disinterested, this is not aninstance of a conservator looting herward’s estate.

In this instance, while the inquirerexpressed some concerns about the POA’spast conduct, nothing in the inquiry sug-

April 2010 THE DISTRICT OF COLUMBIA BAR 335

3For clients with diminished capacity, Rule 1.2

directs a lawyer to Rule 1.14 – “In a case in whichthe client appears to be suffering mental disability,the lawyer’s duty to abide by the client’s decisionsis to be guided by reference to D.C. Rule 1.14”(D.C. Rule 1.2 Comment [2]) – which in turndirects a lawyer to the surrogate decision-maker.

4This opinion does not address circumstances in

which the client can communicate his desires andthose desires conflict with the direction being given

by the POA agent. An analysis of a disputebetween the client and the POA agent requiresassessing the specific authority of the surrogatedecision maker, see D.C. Code § 21-2001 et seq.(Guardianship, Protective Proceedings and DurablePower of Attorney), and assessing the capacity ofthe client to make the decisions in question, seecomment [1] to Rule 1.14, (minors, the elderly, andthe mentally ill “often [have] the ability to under-stand, deliberate upon, and reach conclusions aboutmatters affecting the client’s own well-being.”).When a client with diminished capacity can com-municate his desires, Rule 1.14 directs the lawyerto maintain a “typical client-attorney relationship”and thus may require that the lawyer advocateagainst the direction of the POA agent or seek asubstitute agent. D.C. Rule 1.14(a).

5The District of Columbia’s Guardianship Act

also gives preference to the incapacitated person’schoice. “Unless lack of qualification or other goodcause dictates, the court shall appoint a guardian inaccordance with the incapacitated individual’s cur-rent stated wishes or his or her most recent nomi-nation in a durable power of attorney.” D.C. Code§ 21-2043(b). See also D.C. Code § 21-2057 (a) (1)and (2) (appointment of a conservator).

gests that the POA agent is currentlyengaged in criminal conduct, intends toengage in criminal conduct, or intends touse the lawyer’s services to engage incriminal conduct or perpetrate a fraud onthe court. Nor is there any indication thatthe POA agent is currently failing to pro-vide ongoing care to the client, or failingto pursue any legal recourse to preventthe foreclosure. As explained below, ifany of these circumstances was present,the lawyer would be permitted to takeprotective action, including seeking asubstitute decision-maker.

Thus, neither the POA agent’s interestnor allegations of past bad conductrequires protective action by the lawyer.Instead, the determination of whetherprotective action is permitted comesdown to one of reasoned judgment aboutthe impact of the POA agent’s decisionnot to withdraw and her ongoing pres-ence in the litigation.

If the difference between the lawyer’srecommended course of action for with-drawal and the course preferred by thePOA agent does not rise to the circum-stance that would allow a lawyer to takeprotective action on behalf of a client ifthe disagreement was between the lawyerand a client with diminished capacity,then it is not permissible for a lawyer totake action against the directive of theclient’s surrogate decision-maker. Thus,if the ongoing presence of the POA agentin the litigation does not create a risk ofsubstantial harm, the lawyer cannot seeka new surrogate decision-maker.

On the other hand if, in the lawyer’sjudgment, the failure to secure a “cleanagent” presents a substantial risk that theclient will lose her residence, then pro-tective action can be taken. That actionshould be narrowly fashioned.6 In theinstant case, the information used topursue a new surrogate should be limit-ed to the allegations made by the defen-dant and the scope of the substituteguardianship should be limited to theinstant litigation.

The inquiry also asked if withdrawingfrom the matter was required or an avail-able option. According to the inquirer,

withdrawal at this stage in the litigationwill likely result in the residence beinglost. Withdrawal that would harm theclient is only permitted in five enumerat-ed circumstances:

[A] lawyer may withdraw from repre-senting a client if withdrawal can beaccomplished without material adverseeffect on the interests of the client, or if:

(1) The client persists in a course ofaction involving the lawyer’s ser-vices that the lawyer reasonablybelieves is criminal or fraudulent;

(2) The client has used the lawyer’s ser-vices to perpetrate a crime or fraud;

(3) The client fails substantially to fulfillan obligation to the lawyer regardingthe lawyer’s services and has beengiven reasonable warning that thelawyer will withdraw unless theobligation is fulfilled;

(4) The representation will result in anunreasonable financial burden onthe lawyer or obdurate or vexatiousconduct on the part of the client hasrendered the representation unrea-sonably difficult;

(5) The lawyer believes in good faith, ina proceeding before a tribunal, thatthe tribunal will find the existence ofother good cause for withdrawal.

D.C. Rule 1.16(b).

None of these circumstances are pres-ent here. Further, it is difficult to imaginea circumstance under which permissivewithdrawal causing substantial harmwould be appropriate when representinga client with diminished capacity.Instead, if the client or the POA agentwere to engage in the conduct describedin Rule 1.16(b) that would ordinarilycause a lawyer to withdraw, that is a cir-cumstance under which the lawyershould take protective action pursuant toRule 1.14. This could include seeking theappointment of a surrogate decision-maker if the client does not have one, orseeking a substitute surrogate decision-maker where the client does have one.

Conclusion

Representation of incapacitated clientscan be difficult. The Rule guiding theattorney-client relationship with clientswith diminished capacity is permissiveand a rule of reason. “When the lawyerreasonably believes that the client . . . is atrisk . . . the lawyer may take reasonablynecessary protective action . . . .” D.C.Rule 1.14 (b). These cases will turn on thespecific circumstances and the reasonable-ness of the decisions made by the lawyer.

In this opinion, we address a narrowset of facts—a severely incapacitatedclient, a previously selected surrogatedecision-maker acting within the scopeof the power afforded to her by law, anda disagreement about one part of the liti-gation. In this instance, the lawyer shouldlook to the surrogate decision-makerunless the surrogate decision-maker’schoice creates a risk of substantial physi-cal, financial, or other harm to the inca-pacitated person.

Opinion 354

Providing Financial Assistance to

Immigration Clients Through

Lawyer’s Execution of Affidavit of

Support on Form I-864 as a Joint

Sponsor

Lawyers in immigration matters maynot execute an Affidavit of Support (U.S.Citizenship and Immigration ServicesForm I-864) on the immigrant’s behalf asa joint-sponsor while continuing to repre-sent the immigrant in the matter. Typical-ly, a person who signs an Affidavit ofSupport agrees to support the immigrantat an annual income that is not less than125 percent of the federal poverty levelso that the immigrant will not become apublic charge. The ensuing contractualobligations continue for years after theimmigrant is admitted on the basis of theAffidavit of Support. The Affidavit ofSupport is a guarantee of financial assis-tance to a client. Such guarantees aregenerally prohibited by Rule 1.8(d).Because the obligations continue longafter the completion of the immigrationproceeding, the undertaking does not fitwithin the narrow safe harbor of Rule1.8(d)(2), which allows, but does notrequire, financial support strictly neces-sary to sustain the client during a pro-ceeding. An Affidavit of Supportundertaking by a lawyer to a client is alsofraught with peril under Rule 1.7(b)(4)(conflicts of interest). Thus, a lawyer whowishes to serve as a joint sponsor for animmigration client by executing an Affi-davit of Support on the immigrant’sbehalf must withdraw from the represen-tation of that client before doing so.

Applicable Rules

• Rule 1.7 (Conflict of Interest: Gen-eral Rule)

• Rule 1.8(d) (Conflict of Interest:Advancing or Guaranteeing FinancialAssistance to Client)

• Rule 1.16 (Declining or TerminatingRepresentation)

336 THE DISTRICT OF COLUMBIA BAR August 2010

6Comments [5] and [7] to Rule 1.14 address

protective action and make clear that while theevaluation of the circumstances “is entrusted to theprofessional judgment of the lawyer,” the actionstaken should be the “least restrictive form of inter-vention” and should be guided by “the wishes andvalues of the client to the extent known, the client’sbest interest, the goals of intruding into the client’sdecision-making autonomy to the least extent feasi-ble, maximizing client capacities and respecting theclient’s family and social connections.”

Inquiry

In many immigration matters, federallaw requires a U.S. relative who files animmigrant petition on behalf of an alienrelative to sign an enforceable contractunder which the sponsor agrees to main-tain the sponsored immigrant at an annu-al income that is not less than 125 percentof the federal poverty line. That contracttakes the form of an “Affidavit of Sup-port” on U.S. Citizenship and Immigra-tion Services (“USCIS”) Form I-864,which also requires extensive financialdisclosures to establish that the signer hasthe means to satisfy the obligations itimposes. If the U.S. relative does nothave a sufficient level of income orassets, he or she may seek a joint sponsorto sign an Affidavit of Support on behalfof the intending immigrant. Those obli-gations assumed by the sponsor (the U.S.relative) or the joint sponsor (anotherperson signing a Form I-864) may last forup to ten years and may be enforcedagainst the sponsor(s) by the immigrant,by the federal government, by any stateor political subdivision of a state, or byany other entity that provides any means-tested public benefit. By signing the Affi-davit of Support, the sponsor and thejoint sponsor also agree to submit to thejurisdiction of any federal or state courtfor the purpose of enforcing those obliga-tions. We have been asked whether theRules of Professional Conduct permit alawyer who is representing the prospec-tive immigrant in the immigration matterto sign an Affidavit of Support as a co-sponsor in support of the client’s applica-tion, thereby undertaking significant andlong-term financial obligations to theclient.

Analysis

Under federal law, prospective immi-grants who are “likely at any time tobecome public charges” are “inadmissi-ble.” 8 U.S.C. § 1182(a)(4)(2010). USCISthus requires proof that intending immi-grants will not require public support. Forfamily-based and certain employment-based immigration applications, therequired showing is made through the fil-ing of an “Affidavit of Support” by one ormore persons who are sponsoring theimmigrant. 8 U.S.C. § 1182(a)(4)(C)(ii),1182(a)(4)(D), 1183(a)(2010).1

The Affidavit of Support2 is anenforceable contract in which the signingsponsor “agrees to provide support tomaintain the sponsored alien at an annualincome that is not less than 125 percentof the Federal poverty line during theperiod in which the affidavit is enforce-able.” 8 U.S.C. § 1183(a)(1)(A).3 This isa significant financial obligation, as illus-trated by the following chart on USICSForm I-864P based on the 2009 PovertyGuidelines for the 48 Contiguous Statesand the District of Columbia:

Sponsor’s 100% of 125% ofHousehold Poverty Poverty

Size Guidelines LineFor sponsors on active For all otherduty in the U.S. Armed sponsors

forces who are petitioningfor their spouse or child

2 14,570 $18,212

3 18,310 $22,887

4 22,050 $27,562

5 25,790 $32,237

6 29,530 $36,912

7 33,270 $41,587

8 37,010 $46,262add $3,740 for each Add $5,675 for

additional person each additionalperson

http:/ /www.uscis.gov/files/form/i-864p.pdf (last visited January 7, 2010).4

The obligation “is legally enforceableagainst the sponsor by the sponsored alien,the Federal Government, any State (or anypolitical subdivision of such State), or byany other entity that provides any means-tested public benefit.” 8 U.S.C.§ 1183(a)(1)(B). By signing the form, thesponsor also agrees to submit to the juris-diction of “any federal or state court” forthe purpose of enforcement of the obliga-tions. 8 U.S.C. § 1183(a)(1)(C). Immi-grants have successfully sued theirsponsors to enforce these obligations.5

The sponsor must provide detailedinformation about the sponsor’s ownfinances to show that he or she has themeans to satisfy the support obligations.Should the immigrant ever apply for anymeans-tested public benefits, the spon-sor’s finances will be considered in deter-mining whether the immigrant qualifiesfor the support. The same requirementsapply to a joint sponsor who signs anAffidavit of Support on behalf of anintending immigrant.

The affidavit becomes enforceableagainst the sponsor(s) when the immi-grant is admitted to the United Statespursuant to the requested change in sta-tus. It expires only when the immigrant(1) becomes a U.S. citizen; (2) dies orpermanently departs from the UnitedStates; or (3) is credited 40 quarters (orten years) of work for Social Securitypurposes.6

Typically, the immigrant’s sponsoris a spouse or another close relative(e.g., a parent or sibling) who can sub-mit an immigrant petition on behalf ofthe intending immigrant. However, ifthat sponsor lacks the financial meansto make the necessary showing, a“joint sponsor” may be enlisted toundertake the required support obliga-tion. Our Committee has been askedwhether the lawyer who is represent-ing the immigrant with respect to therequested change of status from non-immigrant to U.S. permanent resident(“green card”) status may also act asthe immigrant’s joint sponsor by exe-cuting an Affidavit of Support on theimmigrant’s behalf.

We assume that a lawyer would con-sider doing so only in extraordinary cir-cumstances. The lawyer’s ownfinancial resources limit the lawyer’sability to do this. Moreover, each out-standing Affidavit of Support executedby the lawyer further limits thelawyer’s ability to sponsor others forimmigration to the United States,including the lawyer’s own familymembers. Liability under the affidavityears after its signing could adverselyaffect the lawyer’s ongoing ability toprovide for the lawyer’s personal andfamily needs.

Historically, lawyer conduct rules inmany jurisdictions either prohibited orplaced strict limitations on a lawyer’sability to provide or guarantee financial

August 2010 THE DISTRICT OF COLUMBIA BAR 337

1This Committee does not opine on questions

of law outside of the Rules of Professional Con-duct. The ethical question presented in this inquiry,however, demands a contextual understanding ofcertain requirements that arise under substantiveimmigration law. The accompanying discussion ofimmigration law reflects the Committee’s under-

standing of relevant law for the sole purpose ofanalyzing the issues presented under the Rules ofProfessional Conduct.

2The form and its instructions are available at

http://www.uscis.gov/files/form/i-864.pdf.

3Sponsors who are on active duty in the U.S. mil-

itary and who are sponsoring a spouse or minor childneed only show the ability to support at 100% of thefederal poverty guidelines. However, the accommo-dation does not apply to joint or substitute sponsors.

4According to the instructions to Form I-864,

the “household size” includes the signing sponsor,any spouse, any dependent children under the ageof 21, any other dependents listed on the sponsor’smost recent federal include tax return, all personsbeing sponsored in the affidavit of support, and anyimmigrants previously sponsored through an affi-davit of support whom the signing sponsor is stillobligated to support.

5See, e.g., Younis v. Farooqi, 597 Supp. 2d 552

(D. Md. 2009) (awarding summary judgment toimmigrant in her Form I-864-based claim againsther former husband).

6According to the form’s instructions, “intend-

ing immigrants may be able to secure credit forwork performed by a spouse during marriage andby their parent(s) while the immigrants were under18 years of age.”

assistance to a client.7 The Affidavit ofSupport’s guarantee to support the clientat 125 percent of the federal poverty levelis difficult to reconcile with such rules.

The District of Columbia has beenmore permissive in this area than someother jurisdictions. Rule 1.8(d) providesas follows:

While representing a client in connec-tion with contemplated or pending liti-gation or administrative proceedings, alawyer shall not advance or guaranteefinancial assistance to the client,except that a lawyer may pay or other-wise provide:

(1) The expenses of litigation or admin-istrative proceedings, includingcourt costs, expenses of investiga-tion, expenses or medical examina-tion, costs of obtaining andpresenting evidence; and

(2) Other financial assistance which isreasonably necessary to permit theclient to institute or maintain the lit-igation or administrative proceed-ings.

Comment [9] to Rule 1.8 explains therule’s history and its intended scope:

Historically, under the Code of Profes-sional Responsibility, lawyers couldonly advance the costs of litigation. Theclient remained ultimately responsible,and was required to pay such costs evenif the client lost the case. That rule wasmodified by this court in 1980 in anamendment to DR 5-103(B) that elimi-nated the requirement that the clientremain ultimately liable for costs of liti-gation, even if the litigation was unsuc-cessful. The provisions of Rule 1.8(d)embrace the result of the 1980 modifica-tion, but go further by providing that alawyer may also pay certain expenses ofa client that are not litigation expenses.Thus, under Rule 1.8(d), a lawyer maypay medical or living expenses of aclient to the extent necessary to permitthe client to continue the litigation. Thepayment of these additional expenses islimited to those strictly necessary to sus-tain the client during the litigation, suchas medical expenses and minimum liv-ing expenses. The purpose of permittingsuch payments is to avoid situations in

which a client is compelled by exigentfinancial circumstances to settle a claimon unfavorable terms in order to receivethe immediate proceeds of settlement.This provision does not permit lawyersto “bid” for clients by offering financialpayments beyond those minimum pay-ments necessary to sustain the clientuntil the litigation is completed.Regardless of the types of paymentsinvolved, assuming such payments areproper under Rule 1.8(d), client reim-bursement of the lawyer is not required.However, no lawyer is required to paylitigation or other costs to a client. Therule merely permits such payments to bemade without requiring reimbursementby the client.

The District of Columbia’s approach ismore permissive than that of some otherjurisdictions because it allows, but doesnot require, minimum payments neces-sary to sustain the client during the litiga-tion or administrative proceeding.8

Jurisdictions with more restrictive ruleshave disciplined lawyers for violationsdespite assertions that the payments weremotivated by humanitarian concerns.See, e.g., Mississippi Bar v. Shaw, 919So. 2d 51 (Miss. 2005); Mississippi Barv. Attorney HH, 671 So. 2d 1293 (Miss.1996); Shea v. Virginia State Bar, 236 Va.442, 374 S.E.2d 63 (Va. 1988).9

While more permissive than similarrules elsewhere, the District of Colum-bia’s Rule 1.8(d) does have limits. TheAffidavit of Support is a guarantee offinancial assistance to the client. Rule1.8(d) thus prohibits its execution by theclient’s lawyer unless the undertaking fits

within one of the two exceptions at Rule1.8(d)(1) and (d)(2). The exception at1.8(d)(1) is not available because theAffidavit of Support does not involve theexpenses of litigation or administrativeproceedings.

Nor do the substantial and long-lastingsupport obligations imposed by the Affi-davit of Support fit within the narrowconfines of the Rule 1.8(d)(2) exceptionfor “other financial assistance which isreasonably necessary to permit the clientto institute or maintain the litigation oradministrative proceeding.” This excep-tion is limited to payments which are“strictly necessary to sustain the clientduring the litigation, such as medicalexpenses and minimum living expenses.”Rule 1.8 cmt. [9]. Its purpose “is to avoidsituations in which a client is compelledby exigent financial circumstances to set-tle a claim on unfavorable terms in orderto receive the immediate proceeds of set-tlement.” Id. It does not extend to offer-ing “financial payments beyond those . . .necessary to sustain the client until thelitigation is completed.” Id.

The Affidavit of Support requires thesponsor to guarantee financial assistanceto the immigrant for years after a changeof status is granted. Because the guaran-tee extends far beyond the duration of thesubject matter of the representation—theimmigration application—the Rule1.8(d)(2) exception does not apply. Afinancial guarantee that extends longafter a proceeding does not meet the dur-ing-the-proceeding limitation that thecomments to Rule 1.8 make clear.10

Moreover, such an undertaking to aclient is fraught with peril under anotherprovision of the Rules of ProfessionalConduct: A lawyer has a conflict of inter-est under Rule 1.7(b)(4) if “[t]he lawyer’sprofessional judgment on behalf of theclient will be or reasonably may beadversely affected by the lawyer’sresponsibilities to or interests in a thirdparty or the lawyer’s own financial, busi-ness, property, or personal interests.”The significant financial obligationsimposed by the Affidavit of Support cancreate exactly the kind of conflict

338 THE DISTRICT OF COLUMBIA BAR August 2010

7For example, DR 5-103(B) of the ABA’s for-

mer Model Code of Professional Responsibilityprovided that “[w]hile representing a client in con-nection with contemplated or pending litigation, alawyer shall not advance or guarantee financialassistance to his client, except that a lawyer mayadvance or guarantee the expenses of litigation,including court costs, expenses of investigation,expenses of medical examination, and costs ofobtaining and presenting evidence, provided theclient remains ultimately liable for such expenses.”

8Accord Louisiana State Bar Ass’n v. Edwins,

329 So. 2d 437, 446 (La. 1976)(“If an impover-ished person is unable to secure subsistence fromsome source during disability, he may be deprivedof the only effective means by which he can waitout the necessary delays that result from litigationto enforce his cause of action. He may, for reasonsof economic necessity and physical need, be forcedto settle his claim for an inadequate amount. We donot believe any bar disciplinary rule can or shouldcontemplate depriving poor people from access tothe court so as effectively to assert their claim.”

9“There is an unmistakable undercurrent in

Shea’s argument to the effect that DR 5-103(B) isnot really that important. The suggestion is that itprevents attorneys from being helpful and compas-sionate to clients who find themselves in dire finan-cial straits during the course of litigation. Thequestion which lurks below the surface of Shea’sargument is this: Why can’t a lawyer help a clientwho needs financial help so long as the client paysthe money back from the proceeds of the litigation?The short answer to that question is that the disci-plinary rule says that such conduct is improper. Thebroader answer is that the rule in question is intend-ed and designed to maintain the independent judg-ment of counsel in the representation of clients.”Shea, 236 Va. at 444-45, 374 S.E.2d at 64.

10The Affidavit of Support’s financial guaran-

tees are extraordinary in both their magnitude andduration. The fact that a particular financial com-mitment or guarantee by the lawyer might extendbriefly beyond the duration of a litigation or admin-istrative proceeding does not necessarily renderthat commitment or guarantee impermissible underRule 1.8(d). For example, a lawyer whose impov-erished client needs housing while awaiting a trialin three months could justify paying for a six-month lease on the client’s behalf if no shorter termlease is available at a reasonable price.

addressed by this rule. A lawyer who hassecond thoughts or a change in financialcircumstances, for example, may have anincentive to sabotage the client’s immi-gration application so that the lawyer’ssupport obligations never can take effect.

In addition, the circumstances that leada lawyer to consider undertaking suchextraordinary obligations on behalf of aparticular client may suggest the pres-ence of a different kind of personal inter-est conflict. Most rational lawyers wouldnot—and financially, could not–under-take obligations like those imposed bythe Affidavit of Support for any client.The fact that a lawyer would considersuch an extraordinary undertaking for aparticular, special client should cause thelawyer to question whether he or she canmaintain the professional distance neces-sary to represent the client effectively anddispassionately.11

While conflicts under Rule 1.7(b)(4)can be waived under certain circum-stances,12 the enforceability of such awaiver from an individual immigrationclient in these circumstances is doubtful.See generally Rule 1.7 cmts. [28]-[29](addressing elements of informed con-sent).

The Committee recognizes that a spon-sor’s execution of an Affidavit of Supporton behalf of an intending immigrant is anact of extraordinary generosity and self-lessness. This opinion should not be readto prohibit lawyers from engaging insuch acts where their financial means andtheir relationships with particular immi-grants enable and incline them to do so.Where a lawyer wishes to do so for aclient in an immigration matter, however,the lawyer must first withdraw from thatrepresentation13 and refer the client to

other counsel. See Rule 1.16(a)(1).14

The other counsel to whom the matter isreferred must not be in the same firm asthe withdrawing lawyer. Under Rule1.8(j), “while lawyers are associated in afirm, a prohibition [under Rule 1.8(d)] thatapplies to any one of them shall apply toall of them.” This means that an individualattorney’s disqualification on financial-support-to-client grounds is imputed to allother attorneys in the same law firm.15

This opinion does not address the situa-tion in which the lawyer is also married orclosely related to the intending immigrant,acting as the immigrant’s primary sponsor,and required by law to execute an Affidavitof Support on the immigrant’s behalf.Although we have not been asked to—anddo not—reach a conclusion on that ques-tion, we note that, in other contexts, theRules of Professional Conduct permitlawyers to provide services for close fami-ly members that would be prohibited forunrelated clients. See Rule 1.8(b).16

Conclusion

The District of Columbia’s Rules ofProfessional Conduct do not permit alawyer to execute an Affidavit of Support(USCIS Form I-864) as a joint sponsoron behalf of an immigration client.Lawyers who wish to sponsor an immi-grant client by executing such an affi-

davit must withdraw from the representa-tion before doing so.

Inquiry No. 09-09-22

Published: March 2010

Opinion No. 355

Flat Fees and Trust Accounts: (a)

must a lawyer deposit flat fees paid in

advance of the conclusion of a repre-

sentation in a trust account?; and (b)

when are such funds earned so that a

lawyer can transfer them to an oper-

ating account?

In its decision in In re Mance, 980A.2d 1196 (D.C. 2009), the District ofColumbia Court of Appeals held that,absent informed consent from the clientto a different arrangement, a lawyer mustdeposit a flat or fixed fee paid in advanceof legal services in the lawyer’s trustaccount. Under Mance, such funds mustremain in the lawyer’s trust account untilearned unless the client gives informedconsent to a different arrangement. ThisOpinion provides guidance for the Barconcerning these rulings.

The lawyer and client may agree onhow and when the attorney is deemed tohave earned some, or all, of the flat feeand thereby entitled to transfer trustfunds into the lawyer’s operatingaccount. Such an agreement must bear areasonable relationship to the anticipatedcourse of the representation and mustavoid excessive “front-loading.” A writ-ten agreement or a writing evidencing theagreement is strongly recommended butnot mandatory. In the absence of anyagreement with the client regarding mile-stones by which the lawyer will haveearned portions of the fixed fee, thelawyer will have the burden to establishthat whatever funds that have been trans-ferred to the lawyer’s operating accounthave been earned.

Alternatively, a lawyer may placeunearned funds in an operating accountprovided that the lawyer obtainsinformed consent from the client as pro-vided in Rule 1.15(e).1 In order to obtainsuch consent, the lawyer must explain tothe client that the funds may also beplaced and kept in a trust account until

August 2010 THE DISTRICT OF COLUMBIA BAR 339

11For an extreme example of a personal interest

conflict of this nature, see the discussion of sexualrelations between lawyer and client at Comments[37] and [38] to Rule 1.7.

12Rule 1.7(c) provides that such conflicts can be

waived if:

(1) Each potentially affected client providesinformed consent to such representation afterfull disclosure of the existence and nature ofthe possible conflict and the possible adverseconsequences of such representation; and

(2) The lawyer reasonably believes that thelawyer will be able to provide competent anddiligent representation to each affectedclient.

13To avoid a violation of Rule 1.8(d), the lawyer

must withdraw from the immigration matter as wellas from any other representations of the client withrespect to contemplated or pending litigation oradministrative proceedings. In addition, withdraw-al from representations of the client in matters that

do not involve litigation or administrative proceed-ings may be required to avoid a violation of Rule1.7(b)(4).

14Rule 1.16(a)(1) provides that “[e]xcept as

stated in paragraph (c), a lawyer shall not representa client or, where representation has commenced,shall withdraw from the representation of a clientif: . . . the representation will result in violation ofthe Rules of Professional Conduct or otherlaw. . . .” Rule 1.16(c) requires lawyers to complywith applicable law regarding notice to or permis-sion of a tribunal when terminating a representationbefore that tribunal.

15Rule 1.10(a)(1) provides a separate imputa-

tion rule for conflicts arising only under Rule1.7(b)(4). Such conflicts are imputed to otherlawyers in the same firm unless the particularlawyer’s disqualifying interest “does not present asignificant risk of adversely affecting the represen-tation of the client by the remaining lawyers in thefirm.” We need not consider whether that exemp-tion from imputation might ever be satisfied in thiscontext because Rule 1.8(j) does not contain a sim-ilar provision.

16Rule 1.8(b) prohibits lawyers from preparing

wills or other instruments that give the lawyer (ora relative of the lawyer) any substantial gift from aclient “except where the client is related to thedonee.” For the purposes of this rule, “related per-sons include a spouse, child, grandchild, parent,grandparent or other relative or individual withwhom the lawyer or the client maintains a closefamilial relationship.”

1Effective August 1, 2010, the District of

Columbia Court of Appeals amended Rule 1.15 andwhat was formerly Rule 1.15(d) is now Rule1.15(e). The discussion in Mance concerning Rule1.15(d) refers to the same provision that we refer-ence as Rule 1.15(e) in this Opinion. The languageof the former Rule 1.15(d) and the current Rule1.15(e) are identical.

earned and that placement in an operat-ing account does not affect a lawyer’sobligation to refund unearned funds ifthe client terminates the representation.The lawyer should also explain the addi-tional protection offered by a trustaccount. For the lawyer’s and client’sprotection, these disclosures should be inwriting, but the Rules do not mandate awriting.

Applicable Rules

• Rule 1.0(e) & (o) • Rule 1.5(b)• Rule 1.15(a) & (e)

Inquiry

The Committee has not received aspecific inquiry in this case. The Courtin Mance stated that its holding madenew law in the District of Columbia.The “application [of the Rules] to flatfees is not clear on its face” and “theunderstanding among lawyers withrespondent’s type of practice [criminaldefense] has been that flat fees belong tothe lawyer upon receipt.” 980 A.2d at1206. Recognizing that many practi-tioners had long followed a contrarypractice, the Court invited the D.C. Barto “provide attorneys with helpful guid-ance on how to conform their practice tothe rule we announce in this opinion.”Id. Pursuant to the Court’s comments,after outlining the Court’s holdings inMance, we address the issues relating toagreements between the client and thelawyer regarding transferring portionsof a flat fee from a trust account to anoperating account prior to the conclu-sion of the representation.2 We alsoaddress a lawyer’s ability to transferfunds in the absence of an agreement.Finally, we discuss those disclosuresthat must be made to a client in order toobtain informed consent under Rule1.15(e) to place the entire flat fee in anoperating account at the outset of anengagement.

Discussion

A. In re Mance.

Mance addressed whether a flat feepaid in advance of services rendered hasbeen “earned” by the lawyer under Rule1.15(e) at the outset of the engagement.

A flat fee is a fee that “embraces work tobe done, whether it be relatively simpleand of short duration, or complex andprotracted.”3 Id. at 1202 (internal quota-tions omitted). The respondent argued(and the Hearing Committee and Boardof Professional Responsibility agreed)that such funds were earned upon receiptbecause a flat fee was “not an ‘advance’but the agreed upon fee regardless of howmuch (or how little) legal work wasrequired.” Id. at 1200. The Court ofAppeals disagreed, holding “that when anattorney receives payment of a flat fee,the payment is an “‘advance[] ofunearned fees’ and ‘shall be treated asproperty of the client . . . until earnedunless the client consents to a differentarrangement.’” Id. at 1202, quoting Rule1.15(e).4

The Court further concluded, as “[a]corollary to the rule that a flat fee is anadvance of unearned fees . . . the fee mustbe held as client funds in a client’s trustor escrow account until they are earnedby the lawyer’s performance of legal ser-vices.” Id. at 1203. In support of this con-clusion, the Court cited the “preservationof the client’s right to choose his or hercounsel, including the right to dischargean attorney. . . . Since a flat fee is notowned by an attorney until it has beenearned through the performance of ser-vices to the client, ‘the client will not riskforfeiting fees for work to be performedin the future if the client chooses to dis-charge his attorney.’” Id. at 1203, quotingIn re Sather, 3 P.3d 403, 410 (Colo.2000).

Beyond stating that the fee agreement“may” address the issue, the Court didnot address in detail “how and when theattorney is deemed to earn the flat fee orspecified portions of the fee.” Id. at1204. It cited with approval the use of“milestones ‘based upon passage of time,the completion of certain tasks, or any

other basis mutually agreed uponbetween the lawyer and the client.’”5

After recognizing that “the default ruleis that an attorney must hold flat fees in aclient trust or escrow account untilearned,” the Court identified an alterna-tive available under the Rules. Id. at1206. Under Rule 1.15(e), an attorneymay place a flat fee, even if not earned, inan operating account with the informedconsent of the client. The Court set forththe requirements for such consent, rely-ing upon the Colorado Supreme Court’sdecision in Sather:

The attorney must expressly communi-cate to the client verbally and in writingthat the attorney will treat the advancefee as the attorney’s property uponreceipt; that the client must understandthe attorney can keep the fee only byproviding a benefit or providing a ser-vice for which the client has contracted;that the fee agreement must spell out theterms of the benefit to be conferred uponthe client; and that the client must beaware of the attorney’s obligation torefund any amount of advance funds tothe extent that they are unreasonable orunearned if the representation is termi-nated by the client.

Id. at 1206, quoting Sather, 3 P.3d at 413.

The Court then reviewed the recordregarding the extent to which the aboveconsiderations were discussed betweenthe respondent and his client and notedthat respondent did not mention that theclient had the option of having the fundsplaced in an escrow account. “Where thereis no discussion regarding the fee arrange-ment besides merely stating the overallfee, and no mention of the escrow accountoption, a client cannot be said to have asufficient basis to give informed consentto waive the requirements of a ruledesigned to protect the client’s interests.”Id. at 1207. Even where an attorney doesobtain informed consent to place a flat feeinto the attorney’s operating account, suchconsent does not alter the obligation of thelawyer to refund any portion of the fee thatultimately is not earned, even if throughno fault of the lawyer. See id. at 1204-05and 1206-07 (obligation to refund existseven when representation is terminated bythe client).6

340 THE DISTRICT OF COLUMBIA BAR August 2010

2For purposes of clarity, the references in this

Opinion to the “conclusion of the representation”means when the lawyer has completed the entireengagement and does not include situations wherethe lawyer is terminated by the client before theengagement is otherwise over.

3The Court recognized “the benefits of a flat fee

arrangement for both the client and the attorney.”A flat fee “reward[s] efficiency” by the lawyer and“eliminate[s] the uncertainty, anxiety and surprise”of hourly rates for the client. Id. at 1204 (internalquotations omitted). The Court explicitly statedthat it did not “intend by our holding to discourageattorneys from charging flat fees.” Id.

4The Court of Appeals contrasted flat fees with

“engagement retainers” which are fees paid “‘apartfrom any other compensation, to ensure that alawyer will be available for the client if required.’”Id. at 1202. Engagement retainers are “earnedwhen received,” subject to refund if the lawyerwithdraws or is discharged prematurely. Id.Engagement retainers may not be deposited in alawyer’s trust account. Doing so would constitutecommingling.

5 Id., quoting Alec Rothrock, The Forgotten Flat

Fee: Whose Money is it and Where Should it beDeposited?, 1 Fla. Coastal. L. J. 293, 323 (1999)(hereafter “Rothrock, The Forgotten Flat Fee”).

6Mance did not discuss a lawyer’s obligations

with respect to funds received under pre-paid legalservices plans. We similarly do not address suchissues here.

B. Client-Lawyer Agreements Concern-ing When Some Flat Fees Held inTrust Have Been Earned.

Under Mance, lawyers remain free towait until the representation has beencompleted before withdrawing any por-tion of the flat fee from a trust account.Mance states that the “fee agreement mayspecify how and when the attorney isdeemed to earn a flat fee or specified por-tions of the fee.” Id. at 1204 (emphasisadded). Accordingly, a lawyer has theoption of simply keeping the entire flat feein a trust account and transferring such feeto an operating account in one lump sumat the conclusion of the representation. Intheory such a practice could be seen ascommingling, as in many instances thelawyer would likely have earned at leastsome of the fee prior to the end of the rep-resentation and yet will have kept all ofthe fee in a trust account. Given theCourt’s emphasis on an attorney’s obliga-tion to refund unearned funds, the quan-tum of which may often be a matter ofdispute, we do not believe that the Rulesas applied to the typical flat fee engage-ment support such a result. Nothing in theMance opinion encourages the creation ofa regime where lawyers are subject to dis-cipline unless they can correctly calibratehow much they have earned at all points ina flat fee representation and then withdrawthe corresponding amounts as earned.

As Mance recognized, however, wait-ing until the conclusion of the representa-tion before getting access to any portionof the flat fee “could impose a financialhardship on solo practitioners and lawyersin small firms.” Id. at 1204. In the eventthat the lawyer wishes to make interimwithdrawals or transfers from the trustaccount, the lawyer should address theissue in the fee agreement. We do not readMance, however, as requiring that the feeagreement be the only way that this issuecan be addressed or, similarly, as holdingthat the matter must be the subject of anagreement reached at the outset of therepresentation. In the latter regard, wenote that circumstances change over thecourse of an engagement. A matter that atthe outset is viewed by the client andlawyer as likely to be simple and briefmay become complex and protracted.

While there is potential for abusewhenever a lawyer seeks to modify thefinancial terms of a representation inmid-stream, such considerations do notabsolutely prohibit a lawyer fromincreasing a fee.7 If the law does not

prohibit a lawyer from changing theunderlying fee after the engagement hascommenced, then, similarly, it shouldnot be read to prohibit a client andlawyer from addressing the issue ofwhen a lawyer has earned portions of aflat fee after the fee agreement has beensigned and the engagement is underway.Lawyers are cautioned that such agree-ments are subject to scrutiny to ensurethat they were not the product of over-reaching by the lawyer, just as with anyother modification to an existing feearrangement.

The next logical question is whetherthe agreement between the lawyer andthe client regarding the treatment of flatfees held in trust accounts must be inwriting. Rule 1.5(b) requires a writing forclients not regularly represented by thelawyer but that writing must address only“the basis or rate of the fee, the scope ofthe lawyer’s representation, and theexpenses for which the client will beresponsible.” Nothing in the Rules indi-cates that the requirement to set forth the“basis or rate of the fee” in writingencompasses the details of how or whena flat fee is earned. Comment [1] to Rule1.5 states “[i]t is not necessary to reciteall of the factors that underlie the basis ofthe fee.” Comment [3] indicates that pro-viding a fixed fee schedule for routinematters, such as uncontested divorces, issufficient to comply with the requirementto set forth the “basis or rate of the fee” inwriting.

In addition to the writing requirementof Rule 1.5, a number of Rules requirethe lawyer to obtain “informed consent”from the client regarding various issuesin the lawyer-client relationship but donot impose any writing requirement. See,e.g., Rules 1.2(c) (limitations on scope ofrepresentation); 1.6(e)(1) (disclosure ofconfidences and secrets); 1.7(c) (conflictwaivers); 1.15(e) (treatment of unearnedclient funds). Under the definition of“informed consent,” a writing is onlyrequired when the underlying Rulerequiring informed consent so specifies.See Comment [3] to Rule 1.0; see alsoRules 1.8(a)(3) and 1.8(g).

There are other important facets in thelawyer-client relationship where writ-

ings are not mandatory. For example,Rule 1.16(b)(3) allows a lawyer to with-draw from a representation of a clientwhen the client “fails substantially tofulfill an obligation to the lawyerregarding the lawyer’s services and hasbeen given reasonable warning that thelawyer will withdraw unless the obliga-tion is fulfilled.” There is no require-ment in the Rule or the Comments thatthe “warning” be in writing. Rule 1.4imposes a number of broad require-ments concerning communication andconsultation between a lawyer and clientbut does not mandate that any of thosecommunications or consultations be inwriting.

The foregoing militates against read-ing the Rules to require that an agreementbetween a client and a lawyer concerningthe treatment of flat fees be in writing.As a matter of prudence, however, suchagreements should be in writing or atleast memorialized in writing.8 Writingsavoid confusion and misunderstandingand can frequently prevent disputes.Writings protect both the lawyer and theclient. Cf. Comment [28] to Rule 1.7 (“Itis ordinarily prudent for the lawyer toprovide at least a written summary of theconsiderations disclosed and to requestand receive a written informed consent”to a conflicts waiver).

In terms of the substance of an agree-ment between a lawyer and a client,Mance explicitly permits the use of“milestones based upon the passage oftime, the completion of certain tasks, orany other basis mutually agreed uponbetween the lawyer and the client,” pro-vided that there is no “extreme ‘frontloading’ of payment milestones.” 980A.2d at 1204. There are many approach-es that would fit within these general cat-egories. A lawyer and client could agreeon withdrawals based on the applicationof an hourly rate to the lawyer’s efforts.Withdrawals could be tied to events in arepresentation, such as completion of dis-covery, hearings or the setting of a trialdate, or to the completion of specific

August 2010 THE DISTRICT OF COLUMBIA BAR 341

7 See Geoffrey C. Hazard, Jr., W. William

Hodes, Peter R. Jarvis, 1 The Law of Lawyering

§ 8.11 (2010 Supp.) (agreements or modificationsafter the commencement of the attorney client rela-tionship “have to bear an extra burden of justifica-tion”); Restatement of the Law Governing Lawyers§ 18 (ALI 2000) (modifications of terms of repre-sentation “are subject to special scrutiny”); see alsoD.C. Legal Ethics Op. 310(2001) (“[a] change in afee arrangement in an ongoing representation issubject to strict scrutiny for overreaching by thelawyer”).

8 A writing signed by the client is, of course,

preferable. Under Rule 1.0(o), a “signed” writingincludes consent expressed electronically, e.g., anemail. If a “signed” writing through “an affirma-tive response by the client” cannot be obtained,“consent may be inferred . . . from the conduct ofthe client . . . who has reasonably adequate infor-mation about the matter.” Comment [3] to Rule1.0. In practical terms, this means that if a clientconsents to an agreement concerning the handlingof flat fee but does not “sign” a writing to thateffect, the lawyer should nevertheless memorializethe terms of the agreement and the client’s consentto it in writing and send such memorialization tothe client.

tasks, such as witness interviews, filingof motions, or, in a non-litigation matter,the completion of specified draft docu-ments. The lawyer and client can agreeupon alternative milestones to addressuncertainties about the future course of arepresentation.

The agreement can also contain lan-guage reflecting that the lawyer will earnthe entire fee at the conclusion of a repre-sentation even if certain specified mile-stones have never been reached. Forexample, a lawyer who persuades a pros-ecutor to dismiss criminal charges inadvance of trial could earn the entire fee,even if the lawyer and client had speci-fied the trial as a milestone in their agree-ment. The milestones and approachesused can and should be tailored to thetype of engagement. Those suitable for acriminal matter may not be appropriate touse for a real estate transaction or thedrafting of a will.

C. Interim Trust Account Withdrawals inthe Absence of Agreement Betweenthe Lawyer and the Client.

Mance does not address whether alawyer may transfer some portion of aflat fee from a trust account to an operat-ing account prior to the conclusion of arepresentation where there is no agree-ment between the lawyer and the client.Such a course is not without peril for thelawyer but is not per se a violation of theRules. Rule 1.15 allows, indeed requires,a lawyer to withdraw from a trust accountfunds that have been earned. A lawyerwho has charged a client, for example,two thousand dollars for the preparationof an estate plan has under most circum-stances earned some portion of the feewhen the lawyer sends the client a set ofdraft documents. A lawyer in a criminalmatter has likewise ordinarily earnedsome amount when the lawyer appearsfor the trial date prepared to present adefense.

In the absence of an agreement withthe client, the burden will be on thelawyer to demonstrate that the amountwithdrawn from trust has been earned.Under such circumstances, the lawyer’sconclusion as to what portion of flat feehas been earned must be reasonable. Fur-ther, the lawyer should give notice to theclient of the withdrawal so that the clientwill have an opportunity to review theamount of the withdrawal, question thelawyer and perhaps contest it. SeeRothrock, The Forgotten Flat Fee at 323(citing authority requiring “written noticeof the time, amount and the purpose ofthe withdrawal”).

D. Informed Consent Under Rule 1.15(e)to Hold Unearned Fees in an Operat-ing Account.

Rule 1.15(e) allows a lawyer, withinformed consent from the client, todeposit unearned funds in an operatingaccount. A flat fee which otherwise mustbe deposited in an trust account andremain in such account until earned maybe deposited at the outset of an engage-ment in an operating account if the clientprovides informed consent.

Mance addressed the disclosures nec-essary to secure such informed consent.“Informed consent” is a defined term inthe Rules, and the definition states thatthe lawyer must “communicat[e] ade-quate information and explanation aboutthe material risks and reasonably avail-able alternatives to the proposed courseof conduct.” Rule 1.0(e). In this context,“informed consent” requires that “theclient . . . be informed that, unless there isan agreement otherwise, the attorneymust . . . hold the flat fee in escrow untilit is earned by the lawyer’s provision oflegal services.” 980 A.2d at 1207. Thebare mention of “the escrow accountoption” will usually be insufficient unlessaccompanied by some explanation of thefeatures that distinguish a trust accountfrom an operating account: i.e., that trustfunds are generally protected from alawyer’s creditors and that trust fundscannot be spent until earned and thus aremore readily available for refund to theclient.9 The lawyer must explain that, incontrast to a trust account, funds in anoperating account are “lawyer’s propertyupon receipt,” with the caveat that theycan be retained only by providing theagreed upon services. In addition, “‘theclient must be aware of the attorney’sobligation to refund any amount ofadvance funds to the extent that they areunreasonable or unearned if the represen-tation is terminated by the client.’” Id. at1207, quoting Sather, 3 P.3d at 413.These disclosures should, as a matter ofprudence, be in writing, but a writing isnot required. See Rule 1.15(e)(containingno writing requirement).10

Conclusion

Absent a contrary agreement, a lawyermust deposit a flat or fixed fee paid inadvance of legal services in the lawyer’strust account. Such funds must remain inthe lawyer’s trust account until earned.The lawyer and client may agree con-cerning how and when the attorney isdeemed to have earned some, or all, ofthe flat fee. Such an agreement must beara reasonable relationship to the anticipat-ed course of the representation and mustavoid excessive “front-loading.” A writ-ten agreement or a writing evidencing theagreement is strongly recommended butnot mandatory. In the absence of anyagreement with the client regarding mile-stones by which the lawyer will haveearned portions of the fixed fee, thelawyer will have the burden to establishthat whatever funds that have been trans-ferred to the lawyer’s operating accounthave been earned.

Alternatively, a lawyer may placeunearned funds in an operating account ifthe lawyer obtains informed consentfrom the client as provided in Rule1.15(e). In order to obtain such consent,the lawyer must explain to the client thatthe funds may also be placed and kept ina trust account until earned and thatplacement in an operating account doesnot affect a lawyer’s obligation to refundunearned funds if the client terminatesthe representation. The lawyer shouldalso explain the additional protectionoffered by a trust account. Although theRules do not mandate a writing, thesedisclosures should be in writing, as amatter of prudence for both the lawyer’sand client’s protection.

Opinion No.356

Absence of Conflict of Interest When

Lawyer Cannot Identify Affected

Clients and Nature of Conflict; Appli-

cability of “Thrust Upon” Exception

Where Lawyer Cannot Seek Informed

Consent.

Where a lawyer considers representinga client in a specific and discrete matter,and, at the commencement of that matter,knows that an identifiable second client,whether unrepresented or represented byseparate counsel, will take a position

342 THE DISTRICT OF COLUMBIA BAR December 2010

9Clients who are “experienced in legal matters

generally and in making decisions of the typeinvolved” or are represented by independent legalcounsel may require “less information and explana-tion than others.” Comment [3] to Rule 1.0.

10Some language in Mance arguably could be

read to impose a writing requirement. The Courtquotes, with agreement, a paragraph from Satheroutlining a number of requirements for client con-sent imposed by the Supreme Court of Colorado.Among the requirements set by the Colorado courtis the obligation to communicate with the client “inwriting.” See 980 A.2d at 1206-07. However, the

Court in Mance then goes on to analyze the disclo-sures made by the respondent and reviews the con-tents of the “conversation” between the respondentand the complainant. See id. at 1207. The result, inour view, is an ambiguity that does not overcomethe Rules drafters’ decision not to include a writingrequirement in Rule 1.15(e).

adverse to the potential client, Rule1.7(b)(1) requires the lawyer to disclosethe conflict of interest and seek theinformed consent of all potentially affect-ed clients before undertaking the repre-sentation of the potential client. If thelawyer cannot identify the nature of theconflict or a specific client or clients whowill take such an adverse position, how-ever, there is no conflict of interest underRule 1.7(b)(1) and the lawyer may under-take the representation of the potentialclient without seeking the consent ofanother client or clients.

Where a lawyer is engaged in the con-fidential representation of a client and asecond client thrusts a conflict of interestupon the lawyer that was not reasonablyforeseeable, under Rule 1.7(b)(1), thelawyer’s obligation to maintain confiden-tiality prevents her from obtaininginformed consent of the second clientunder Rule 1.7(d), but she need not with-draw from the representation of the firstclient, unless there is also a conflict underRule 1.7(b)(2)-(4).

Applicable Rules

• Rule 1.6 (Confidentiality of Infor-mation)

• Rule 1.7 (Conflict of Interest: Gen-eral Rule)

Inquiry

The Committee has received aninquiry from a lawyer practicing in ahighly specialized industry. One of hercurrent clients, Client A, sought heradvice in connection with its proposedacquisition of Company X. The transac-tion was subject to regulatory approval,and Client A, which is a foreign compa-ny, anticipated that its bid would generatescrutiny and opposition from the businessand political communities. As a conse-quence, Client A asked the lawyer to keepthe proposed bid confidential until thebid was formally announced.

The lawyer recognized that it was pos-sible—and even likely—that one or moreof her other industry clients might alsobid to acquire Company X. The lawyeralso believed that once Client A’s bidbecame public, one or more of her otherclients might intervene to oppose regula-tory approval of Client A’s bid. Impor-tantly, the lawyer asserts that her industryexperience was the only basis for herassumption that other industry companiesmight seek to acquire Company X oroppose Client A’s bid, although she couldnot identify which of her clients, if any,might take either position.

As the inquiring lawyer explains, onlya few lawyers practice in this specializedindustry and those lawyers routinely rep-resent multiple industry clients. Thus, ifshe had declined to represent Client A,other industry lawyers likely would con-front similar dilemmas. Accordingly, thelawyer agreed to represent Client A inconnection with its proposed transactionand worked intensely for several weeksto prepare its bid. Shortly before Client Awas to announce its bid, another of thelawyer’s industry clients, Client B,announced that it would submit a bid toacquire Company X. Client B uses theinquiring lawyer’s services in other unre-lated matters, but retained a differentlawyer to represent it in connection withthis proposed acquisition. Once ClientA’s bid is made public, Clients A and Bwill either compete directly for the rightto acquire Company X, intervene withthe regulator to prevent one another fromobtaining regulatory approval for theirrespective bids, or both.

The inquiring lawyer believes thatClient A lacks sufficient time to retainanother lawyer, given the timing neces-sary for Client A to submit a successfulbid. Further, the lawyer’s representationof Client A remains confidential becauseClient A’s bid has not yet been made pub-lic. Accordingly, she cannot disclose herrepresentation of Client A to Client B.

The lawyer has submitted twoinquiries to this Committee. First, thelawyer asks whether her agreement torepresent Client A violated Rule 1.7(b)(1)of the District of Columbia Rules of Pro-fessional Conduct (“D.C. Rules”). Withrespect to her second inquiry, the lawyernotes that although Client B’s announce-ment of a competing bid creates a con-flict of interest that can be waived by theinformed consent of Clients A and B, theconfidential nature of her representationof Client A prevents her from seekingsuch consent from Client B. The lawyerasks whether the Rules therefore requireher to withdraw from her representationof Client A or whether she can continueto represent Client A without seekingClient B’s informed consent.

Discussion

I. Absence of Conflict of Interest

When Lawyer Cannot Identify

Affected Clients and Nature of Con-

flict.

The first inquiry is whether a lawyermay undertake the representation of aclient in a specific matter when thelawyer has reason to believe that another

client will take a position adverse to thatclient in that matter, but cannot identifythe nature of the conflict or the specificclients who might be affected.

Rule 1.7 aims to safeguard the duty ofloyalty to one’s client. To that end, Rule1.7(b)(1) directs that:

Except as permitted by paragraph (c)

below, a lawyer shall not represent a

client with respect to a matter if:

(1) that matter involves a specific party

or parties and a position to be taken by

that client in that matter is adverse to a

position taken or to be taken by another

client in the same matter even though

that client is unrepresented or represent-

ed by a different lawyer.

The Rules provide an exception to thisprohibition, however, when “each poten-tially affected client provides informedconsent to such representation after fulldisclosure of the existence and nature ofthe possible conflict and the possibleadverse consequences of such representa-tion” and the lawyer reasonably believesthat she can provide competent and dili-gent representation to each potentiallyaffected client. D.C. Rule 1.7(c). Absentsuch disclosure and informed consent,the lawyer may not undertake the pro-posed representation.

Generally, the application of Rule1.7(b)(1) is straightforward. The presentinquiry, however, requires us to assess alawyer’s obligations when the proposedrepresentation of one client (Client A)may lead to taking a position adverse toanother client, but the lawyer cannotidentify the nature of the conflict or allpotentially affected clients. We concludethat under those circumstances, there isno conflict of interest under Rule1.7(b)(1) and the lawyer may undertakethe representation of Client A.

Rule 1.7(b)(1) does not explicitlyaddress this question, but the text of therule suggests that to be prohibited, a con-flict must be clear, specific and not basedon mere speculation. To obtain consent toa conflict of interest under Rule1.7(b)(1), a lawyer must disclose to eachpotentially affected client “the existenceand nature of the possible conflict and thepossible adverse consequences of suchrepresentation.” D.C. Rule 1.7(c) (1). Thefirst part of this rule – i.e., that the lawyermust disclose the conflict to each poten-tially affected client – assumes that thelawyer can, in fact, identify a specificclient before she has an obligation to dis-close the conflict and obtain informedconsent from the appropriate parties. The

December 2010 THE DISTRICT OF COLUMBIA BAR 343

second part of the rule – i.e., that thelawyer must disclose the existence andnature of the conflict and adverse conse-quences – assumes that the lawyerknows, or reasonably should know, that aspecific client will, in fact, take a positionadverse to another specific client beforeany obligation to disclose is triggered.We therefore read Rule 1.7(b)(1) to pro-hibit only those representations in whichthe lawyer can identify (i) the nature ofthe conflict and (ii) the specific client orclients who might be affected.

That the inquiring lawyer’s specula-tion was ultimately proven correct doesnot alter our reading of the rule or thebasis for our conclusion. In the presentinquiry, the lawyer’s industry experiencewas the only basis for her belief that otherindustry companies—including, perhaps,one of her clients—might seek to acquireCompany X. (For purposes of this opin-ion, we accept and rely upon the inquir-ing lawyer’s representation that her beliefthat one or more of her other clientsmight also bid to acquire Company Xwas not based on confidential informa-tion from any of her clients but solely onher industry expertise and experience.)The sophisticated industry lawyer mayhave a more nuanced, specific anddetailed view of potential conflicts thanthe outside objective observer. But Rule1.7(b)(1)’s prohibition cannot dependupon whether a lawyer’s speculationabout specific industry events, which areoften based on unpredictable businessjudgments, is proven correct. Suchexpertise and instinct may serve clientswell in transactional negotiations and lit-igation strategy, but it does not inform thetest of what constitutes a conflict of inter-est under Rule 1.7(b)(1).

A lawyer’s obligations under Rule1.7(b)(1) are clear when specific, identi-fiable clients take or will take adversepositions in a specific matter, but thelawyer’s representation of one client isconfidential. Where a lawyer’s “obliga-tion to one or another client . . . precludesmaking such full disclosure to [a poten-tial new client]” to obtain a waiver, “thatfact alone precludes undertaking [a new]representation.” D.C. Rule 1.7, cmt. [27];see D.C. Legal Ethics Op. 309 (2001)(noting, in the context of advancewaivers, that “if the lawyer cannot dis-close the adversity to one client becauseof her duty to maintain the confidentiali-ty of another party’s information, thelawyer cannot seek a waiver and hencemay not accept the second representa-tion”); D.C. Legal Ethics Op. 276, n. 5(1997) (noting that situations may arise

in which the lawyer’s confidentialityobligations preclude disclosure of rele-vant results of a conflicts check to theparties to a mediation and finding that insuch cases, “the lawyer/mediator wouldhave no choice but to resolve the problemby withdrawing as mediator without fur-ther comment”).1

But the mere possibility, or even likeli-hood, of adversity between two clientsdoes not create a conflict of interestunder Rule 1.7(b)(1). “A conflict of inter-est is involved if there is a substantial riskthat the lawyer’s representation of theclient would be materially and adverselyaffected by the lawyer’s . . . duties toanother current client . . . .” Restatement(Third) of the Law Governing Lawyers §121 (2000). As the Restatement notes,however, “[t]here is no conflict of inter-est . . . unless there is a ‘substantial risk’that a material adverse effect will occur. .. . The standard requires more than amere possibility of adverse effect.” Id.cmt. c(iii).2 Cf. D.C. Legal Ethics Op.265 (concluding, in context of positionalconflicts under Rules 1.7(b)(2) – (4), that“[t]he mere possibility that a result in onerepresentation will affect the outcome ofanother is not enough to trigger a conflictas to which waiver must be sought”).Simply put, if the lawyer cannot knowwhich clients to talk to and what conflictsto disclose, then there is no conflict ofinterest under Rule 1.7(b)(1).

Our reading of Rule 1.7(b)(1) is also inaccord with our policy of protecting theability of clients to obtain lawyers oftheir own choosing. See, e.g., D.C. LegalEthics Ops. 241; 181 (“[W]e are hesitantto announce views that . . . prevent orunduly hinder clients from obtaininglegal representation from attorneys oftheir own choosing who may haveformed new associations.”); D.C. Rule

5.6, cmt. [1] (noting that “[a]n agreementrestricting the right of partners or associ-ates to practice after leaving a firm notonly limits their professional autonomybut also limits the freedom of clients tochoose a lawyer”). In a specialized indus-try served by few lawyers, those lawyerswill often represent multiple businesscompetitors. Such representationsincrease the likelihood that a lawyer mayundertake a representation for one clientthat later turns out to be adverse to plansof another client that had not been dis-closed or perhaps not even formulatedwhen the representation began. Sophisti-cated clients retaining their counsel ofchoice may be aware that such issues arelikely to arise and, nevertheless, acceptthe risks of such issues in exchange forthe benefits of her expertise. We do notread the rules to discourage that freedomof choice by clients. Accord D.C. LegalEthics Op. 181.

The inquiring lawyer in this case didnot obtain advance waivers from eitherClient A or B. As a general matter, itwould have been prudent to do so,although her failure to do so did not vio-late the Rules. Where lawyers anticipatefrequent conflicts between their clients, itis advisable to seek advance waivers. SeeD.C. Rule 1.7, cmts. [31] – [32]. Suchwaivers are particularly apt in a special-ized industry, generally populated bysophisticated clients. See D.C. LegalEthics Op. 309 (2001); see also LaurenNicole morgan, Note, Finding TheirNiche: Advance Conflicts Waivers Facil-itate Industry-Based Lawyering, 21 Geo.J. Legal Ethics 963, 980 (2008) (notingpublic policy considerations favoring theuse of prospective waivers).

II. Applicability of “Thrust-Upon”

Exception When Lawyer Cannot

Obtain Informed Consent.

The second inquiry is whether thelawyer must withdraw from the represen-tation of Client A if the confidentialnature of that representation precludesher from seeking the informed consent ofClient B. In addressing this question, weassume that the conflict of interest atissue was not reasonably foreseeable, asexplicitly required by Rule 1.7(d).

Rule 1.7(c) articulates an exception tothe prohibition in Rule 1.7(b)(1) if alawyer has obtained the informed consentof each potentially affected client afterfull disclosure of the existence and natureof the conflict. See D.C. Rule 1.7 & cmt.[27]. In the present case, however, thelawyer cannot disclose the conflict

344 THE DISTRICT OF COLUMBIA BAR December 2010

1The inquiring lawyer must, of course, consid-

er any other prohibitions to undertaking the repre-sentation, including the prohibitions in Rule1.7(b)(2)–(4).

2“In the modern view, a conflict of interest

exists whenever the attorney-client relationship orthe quality of the representation is ‘at risk,’ even ifno substantive impropriety—such as a breach ofconfidentiality or less than zealous representa-tion—in fact eventuates. The law of lawyering thenproceeds by assessing the risk and providing anappropriate response.” GEOFFREy A. HAzARD, JR. &W. WILLIAm HODES, THE LAW OF LAWyERING §10.4 (3d ed. 2001) (emphasis in original). See alsomONROE H. FREEDmAN & ABBE SmITH, UNDER-STANDING LAWyERS’ ETHICS at 269 (3d ed. 2004)(noting that “the term conflict of interest refers to asituation where there is a reasonable possibility thatyou will not be able to fulfill all of the legitimatedemands on your time, attention, and loyalty”)(emphasis in original).

because her representation of Client Amust remain confidential until afterClient A has announced its bid. Rule 1.6governs the confidentiality of a client’sinformation, and identifies limited excep-tions to the “fundamental principle . . .that the lawyer holds inviolate the client’ssecrets and confidences.” See D.C. Rule1.6, cmt. [4]. For purposes of this opin-ion, we assume that none of these excep-tions applies and so the lawyer isprohibited from disclosing the fact of herrepresentation of Client A.

Rule 1.7(d) addresses situations inwhich a lawyer represents multipleclients in unrelated matters and anunforeseen adversity—commonlyreferred to as a “thrust-upon” conflict—arises between the clients. The rulestates:

If a conflict not reasonably foreseeable

at the outset of representation arises

under paragraph (b)(1) after the repre-

sentation commences, and is not waived

under paragraph (c), a lawyer need not

withdraw from any representation

unless the conflict also arises under

paragraphs (b)(2), (b)(3), or (b)(4).

D.C. Rule 1.7(d).

For the inquiring lawyer, the principleof confidentiality prohibits disclosure ofher representation of Client A, but with-out full disclosure, she cannot obtaininformed consent to continue that repre-sentation. See D.C. Rules 1.6, 1.7(c).Under these circumstances, does Rule1.7(d) require the lawyer to withdrawfrom the representation of Client A? Weconclude that it does not. Where a con-flict is thrust upon a lawyer, pursuant toRule 1.7(d), and the confidential natureof a representation precludes the lawyerfrom seeking informed consent for thatrepresentation pursuant to Rule 1.7(c),the lawyer need not withdraw from therepresentation at issue unless the conflictalso arises under Rule 1.7(b)(2)-(4).

The structure of Rule 1.7(d) informsour reading of the rule. The key require-ment in that Rule is that the thrust-uponconflict was “not reasonably foreseeableat the outset of the representation.” D.C.Rule 1.7(d). This element, set forth in thefirst phrase of Rule 1.7(d), establishes apredicate for application of the thrust-upon exception. If this predicate has beenestablished, the lawyer must make a fulldisclosure to each potentially affectedclient, but the clients’ waiver of thethrust-upon conflict is not determinative.Even if Client B (who has created thethrust-upon conflict) will not waive theconflict, Rule 1.7(d) does not require the

lawyer to withdraw from the representa-tion. The structure of Rule 1.7(d) there-fore reflects that although the lawyergenerally must seek the informed consentof the second client (Client B, in thiscase), the result of her efforts – i.e.,whether the second client (Client B)agrees to waive the conflict – does not,standing alone, preclude her continuedrepresentation of the first client (ClientA). In our view, this approach reflects aconsidered policy judgment underlyingRule 1.7(d). Consistent with that policy,we believe that Rule 1.7(d) does notrequire withdrawal where a lawyer can-not seek the second client’s waiver.

“The Rules of Professional Conduct . .. are rules of reason,” D.C. Rules, Scope[1], and we employ a “common sense”approach to questions concerning theprofessional conduct of lawyers. SeeD.C. Legal Ethics Op. 272 (1997);AmSouth Bank v. Drummond Company,Inc., 589 So.2d 715 (Ala. 1991). Rule1.7(d) provides that the lawyer need notwithdraw from any representation if thethrust-upon conflict “is not waived.” Acommon sense reading of the phrase “isnot waived” necessarily includes thosecircumstances in which the conflict is notwaived because a waiver cannot besought without violation of the Rules.Our conclusion assumes that the inquir-ing lawyer does not have a conflict underRule 1.7(b)(2) – (4). If there is a conflictunder Rule 1.7(b)(2) – (4), however, thethrust-upon exception does not apply andthe lawyer must withdraw from at leastone of the representations. See D.C. Rule1.7(d).3

Published: November 2010

Opinion 357

Former Client Records Maintained in

Electronic Form

The question presented is whether alawyer who maintains some or all of a for-mer client’s records solely in electronicform must provide the former client withpaper copies of such records if requestedby the former client and, if so, whether thelawyer may charge the former client forproviding the files in paper form.

As a general matter, there is no ethicalprohibition against maintaining clientrecords solely in electronic form,although there are some restrictions as toparticular types of documents. Lawyersand clients may enter into reasonableagreements addressing how the client’sfiles will be maintained, how copies willbe provided to the client if requested, andwho will bear what costs associated withproviding the files in a particular form;entering into such agreements is prudentand can help avoid misunderstandings.Assuming no such agreement wasentered into prior to the termination ofthe relationship, however, a lawyer mustcomply with a reasonable request to con-vert electronic records to paper form. Inmost circumstances, a former clientshould bear the cost of converting topaper form any records that were proper-ly maintained in electronic form. Howev-er, the lawyer may be required to bear thecost if (1) neither the former client norsubstitute counsel (if any) can access theelectronic records without undue cost orburden; and (2) the former client’s needfor the records in paper form outweighsthe burden on the lawyer of furnishingpaper copies. Whether (1) a request forelectronic files to be converted to paperform is reasonable and (2) the formerclient’s need for the files in paper formoutweighs the lawyer’s burden of provid-ing them (such that the lawyer shouldbear the cost) should be considered bothfrom the standpoint of a reasonable clientand a reasonable lawyer and should takeinto account the technological sophistica-tion and resources of the former client.

Applicable Rules

• Rule 1.4(a)—Communication• Rule 1.6(a)(1) and (f)—Confiden-

tiality of Information• Rule 1.15(c)—Safekeeping Property• Rule 1.16(d)—Declining or Termi-

nating Representation

Inquiry

After the termination of a lawyer’s rep-resentation of a client, the former clientrequested that the lawyer deliver to theformer client all of the former client’sfiles. The lawyer stated that the files weremaintained solely in electronic form andoffered to deliver them to the formerclient in electronic form on a CD-ROM.The former client responded by request-ing that the lawyer produce the files inpaper form, with the lawyer bearing thecost of converting the files from electron-ic to paper form. The lawyer askswhether (a) he must convert the electron-

February 2011 THE DISTRICT OF COLUMBIA BAR 345

3In this regard, we emphasize that throughout

her representation of Client A, the lawyer has anongoing obligation not to disclose or use Client B’sconfidential information. See D.C. Rule 1.6. If thepreservation of that confidentiality would adverse-ly affect her representation of Client A, she cannotcontinue the representation of Client A unlessClient A consents. See D.C. Rule 1.7(b)(2) – (4).

ic files to paper form; and (b) if so,whether the lawyer must bear the cost ofconverting the files to paper form.

Discussion

1. Maintenance of Client Records in

Electronic Form

Lawyers and clients may enter intoreasonable agreements addressing howthe client’s files will be maintained, howcopies will be provided to the client ifrequested, and who will bear what costsassociated with providing the files in aparticular form. For example, a lawyermay require that a client seeking repre-sentation consent, as a condition of therepresentation, to the lawyer’s mainte-nance of his or her records solely in elec-tronic form, so long as this method ofmaintaining the files would not result inforeseeable prejudice to the client. SeeVirginia Ethics Opinion 1818 (Sept. 30,2005). (A prospective client, of course, isfree to seek out counsel who does notimpose such a requirement.) As withother aspects of the lawyer-client rela-tionship, it is prudent to address suchissues in advance where possible in orderto avoid later misunderstandings and dis-putes.

The inquiry here, however, does notstate how the lawyer’s files came to be inelectronic form only, or whether this wasthe result of any discussions or agree-ment with the former client. Accordingly,we begin with some discussion of the useof electronic records for current and for-mer clients. We see nothing in the ethicsrules that prohibits establishing andmaintaining most types of client recordsin electronic form. While the rules con-template that lawyers will establish andmaintain appropriate files relating to therepresentation of a client, the rules do notprescribe the form in which files must bekept. See, e.g., D.C. Rules 1.8(i), 1.16(d).

Indeed, it is common today for lawyersto maintain many records relating to aclient representation solely in electronicform. By way of example:

• Emails and attachments: Muchcommunication between lawyersand clients and between lawyersand opposing counsel takes place byemail. Emails and attachments toemails may or may not be printedout for a paper file.

• Pleadings: Many courts nowrequire that pleadings be filed elec-tronically, usually in PDF format,and lawyers may maintain thepleadings file in electronic form. A

lawyer may draft a pleading elec-tronically in a word processing pro-gram, convert it to PDF, and file itwithout ever printing out the plead-ing. Similarly, a lawyer served witha pleading electronically may electto save it solely in electronic form.

• Document production: It is verycommon for documents produced inlitigation to be provided solely inelectronic form, commonly in PDFformat or as .tif images. A lawyerreceiving documents produced inelectronic form may review themelectronically as well. Similarly,many corporate clients gatheringdocuments for possible productionin response to document requestswill provide such documents totheir lawyers in electronic form,after which the lawyers may reviewthe documents in electronic formfor possible responsiveness to therequests.

• Databases: Particularly in casesinvolving large volumes of docu-ments, it is common for electronicdatabases to be created containinginformation about those documents.Lawyers may run searches and gen-erate reports based on those search-es, but it would be unusual for theentire contents of such a database tobe printed out in hard copy form.

Use of electronic records can reducecosts for lawyers and clients throughreduced file maintenance and storagecosts and through the increased efficien-cy that may result from being able toaccess the records electronically ratherthan through physical access. Clientsmay maintain their own records solely inelectronic form as well, and some clientsrequire their lawyers to provide themwith pleadings and other documents inelectronic form wherever possible.

Electronic client records are alsosometimes created when the records areinitially received or created in paperform, but the paper files are later con-verted to electronic form, typically byscanning them. Such conversion raisesthe question whether the paper docu-ments may be destroyed or discardedafter the electronic versions are created.Initially, we note that certain types ofdocuments should not be destroyed. Forexample,

• A lawyer must retain in paper forma client’s intrinsically valuable,original paper documents, such assecurities, negotiable instruments,

deeds, settlement agreements, andwills. See D.C. Rule 1.15(a) (clientproperty other than funds “shall beidentified as such and appropriatelysafeguarded”); D.C. Legal EthicsOp. 283 (1998) (stating that “itwould be unethical for a lawyer todestroy valuables contained in aclient file” and identifying “securi-ties, negotiable instruments, deeds,settlement agreements, and wills” asproperty “that has intrinsic value ordirectly affects valuable rights”).1

• “A lawyer should use care not todestroy any document which thelawyer has a legal obligation to pre-serve.” Id.

• “A lawyer should use care not todestroy or discard original docu-ments provided by the client whenthey are not otherwise filed orrecorded in the public records.” Id.

• A lawyer should preserve the origi-nal paper document if an electronicversion of the document would failto “protect the [current or former]client’s interests.” D.C. Rule1.16(d).

• Paper documents that the client hasprovided to the lawyer should notbe destroyed unless the current orformer client does not want the doc-uments returned and consents totheir destruction.2 See D.C. Rule1.4(a) – Communication (“A lawyershall keep a client reasonablyinformed about the status of a mat-ter”).3 However, such documentsshould not be destroyed if they fallin one of the first four categories ofdocuments set forth above.

Subject to the above exceptions, alawyer may convert a client’s file intoelectronic form and destroy the paperfiles if he has reasonably concluded thatthe paper version is not needed for his

346 THE DISTRICT OF COLUMBIA BAR February 2011

1As noted in D.C. Legal Ethics Op. 283 (1998),

if a former client cannot be located, the lawyer maybe able to turn valuable property over to a thirdparty in certain circumstances.

2Consent is generally not required if the repre-

sentation of the client terminated more than fiveyears earlier and the former client either cannot befound or refuses to respond to requests for instruc-tions on disposition of the files. D.C. Legal EthicsOp. 283 (1998). See id. for further guidance on spe-cific categories of documents that must be retainedor may be destroyed.

3It would also be prudent for a lawyer to consult

with the client before making a decision to destroylarge quantities of paper documents received fromother sources (e.g., documents produced by anoth-er party in discovery) that the lawyer has convertedto electronic form.

ongoing representation of a currentclient.4 The lawyer should bear in mindthat if he or she does destroy paper files,he may in some cases, absent agreementwith the client to the contrary, be requiredin the future to provide the electronicrecords in paper form at the client’srequest and possibly at the lawyer’sexpense, as discussed further below.

Lawyers who maintain client recordssolely in electronic form should take rea-sonable steps (1) to ensure the continuedavailability of the electronic records in anaccessible form during the period forwhich they must be retained5 and (2) toguard against the risk of unauthorizeddisclosure of client information. See D.C.Rule 1.6(a)(1); see also D.C. Rule 1.6(f)(“A lawyer shall exercise reasonable careto prevent the lawyer’s employees, asso-ciates, and others whose services are uti-lized by the lawyer from disclosing orusing confidences or secrets of aclient.”).

2. A Lawyer’s Obligations Regarding

Providing a Former Client with

Records Maintained Solely in Elec-

tronic Form

A lawyer is ethically obligated, uponreasonable request, to provide a formerclient with the former client’s files. SeeD.C. Rule 1.15(c) (“Except as stated inthis rule or otherwise permitted by law orby agreement, a lawyer shall promptlydeliver to the client or third person anyfunds or other property that the client orthird person is entitled to receive . . . .”);D.C. Rule 1.16 (“In connection with anytermination of representation, a lawyershall take timely steps to the extent rea-sonably practicable to protect a client’sinterests, such as . . . surrendering papersand property to which the client is enti-tled . . . .”) (emphasis added). See gener-ally D.C. Legal Ethics Op. 283 (1998).As discussed above, client files ofteninclude electronic records, so the duty toprovide the former client’s files will oftenextend to electronic records. (When turn-ing over electronic records, care must betaken to avoid providing documents ormetadata that would reveal confidences

of a different client.6) The inquiry hererelates to the lawyer’s obligation whensome or all of the former client’s files aremaintained solely in electronic form andthe former client requests that they beprovided in paper form. Specifically,must the lawyer provide such records inpaper form, and if so, who must pay forthe conversion to paper?7

As noted earlier, lawyers and clientsmay enter into reasonable agreementsregarding issues such as how records willbe kept, how copies may be provided tothe client, and who will pay the costs ofconverting electronic records if the clientseeks to get them in paper form. Theinquiry here, however, suggests that therewas no such agreement between theinquirer and the former client.

In the absence of an agreement,whether the lawyer must provide theelectronic records in paper form dependson whether the request for the paper ver-sion is reasonable. In general, suchrequests will be reasonable, though therewill doubtless be instances where itwould impose an unreasonable burden onthe lawyer, even if the former client iswilling to pay for the conversion to paperform.

If the request to provide the electronicrecords in paper form is reasonable, theissue of who should pay for the conver-sion to paper form depends on the factsand circumstances, and the answer mayvary for different categories of records.In most cases, if the records were proper-ly maintained in electronic form, but theformer client has requested the records inpaper form, the former client should bearthe cost of converting the records topaper form. This is particularly so withrespect to records that are “not necessaryto protect [the] client’s interests,” as towhich the former client should bear thecost of conversion. See D.C. Legal Ethics

Op. 283 (1998). With respect to othertypes of electronic records, the lawyershould bear the cost of providing therecords in paper form if (1) neither theformer client nor substitute counsel (ifany) can access the electronic recordswithout undue cost or burden; and (2) theformer client’s need for the records inpaper form outweighs the burden on thelawyer of furnishing paper copies.8

Whether (1) a request for electronicfiles to be converted to paper form is rea-sonable and (2) the former client’s needfor the files in paper form outweighs thelawyer’s burden of providing them (suchthat the lawyer should bear the cost)should be considered from the standpointof both a reasonable client and a reason-able lawyer. The technological sophisti-cation and resources of the client shouldalso be taken into account.9 It is not pos-sible to provide a bright line test, but theanalysis can be illustrated with someexamples:

• In litigation, 25 million pages ofdocuments were produced to thelawyer in electronic form by anoth-er party. The electronic records area standard format, such as .tif. Thelawyer never received the docu-ments in paper form. Although thelawyer printed some documents forspecific purposes (such as for use asexhibits), the lawyer had no occa-sion to print the entire set of docu-ments in paper form. The formerclient requests that the lawyer printall of the documents in paper form.The costs of printing would be sub-stantial. In addition, printing all ofthe documents would require sub-stantial time of the lawyer’s staffand would be extremely disruptiveto the operations of the lawyer’soffice. The former client’s request isnot reasonable, even if the former

February 2011 THE DISTRICT OF COLUMBIA BAR 347

4Opinions in several other jurisdictions have

similarly concluded that, with certain exceptions, alawyer may convert paper documents to electronicform and maintain the client’s file solely in elec-tronic form without requiring client consent. SeeMissouri Ethics Opinion 127 (May 19, 2009);Maine Ethics Opinion 183 (Jan. 2004); New JerseyEthics Opinion (April 24, 2006).

5See generally D.C. Legal Ethics Op. 283

(1998) for guidance on the requirements for main-taining files relating to former clients.

6It is common for lawyers to draft documents

for one client by using, as a starting point, docu-ments prepared for another client. When a lawyerturns over a former client’s file to the former client,the lawyer must take reasonable steps to make surethat any such material prepared for a differentclient or that would reveal confidences or secrets ofa different client are first removed from the file. Inthe case of electronic records, the lawyer must alsotake reasonable steps to make sure that no metada-ta is being provided that would reveal confidencesor secrets of a different client. See generally D.C.Legal Ethics Op. 341 (2007) (discussing otherissues relating to metadata).

7The inquirer does not mention any unpaid

fees. Accordingly, we do not address any issueswith respect to exercise of a retaining lien underRule 1.8(i). See D.C. Legal Ethics Ops. 230 (1994),250 (1992), 333 (2005).

8Similar principles would apply to a request

from a former client to convert electronic recordsfrom one electronic format to another. If therequest is reasonable, the lawyer should convert therecords, but in most cases the former client shouldpay the cost of doing so unless the burden analysisdictates otherwise.

9See Arizona Ethics Opinion 07-02 (June 2007)

(“A lawyer who has chosen to store his or her clientfiles digitally cannot simply hand a disk or otherstorage medium to a client without confirming thatthe client is able to read the digitized images. If theclient does not have either the technological knowl-edge or access to a computer on which to displaythe electronic images, or if the client has hired sub-stitute counsel who is in the same position as theclient, the original lawyer may need to providepaper copies of the documents.”)

client offers to pay for the costs ofprinting. Rather, it would be suffi-cient for the lawyer to provide acopy of the documents in electronicform to the former client,10 afterwhich the former client couldarrange and pay for printing if theformer client so desired.

• The lawyer created an extensivedatabase containing informationrelating to millions of pages of doc-uments produced in litigation. Thelawyer generated certain reportsfrom the database in paper form, butnever had any reason to print theentire database in paper form. Thedatabase was created using propri-etary software developed for thelawyer’s firm. The former clientrequests that the database be provid-ed in paper form. As with the otherexamples, there is no agreementbetween the lawyer and the formerclient with respect to convertingelectronic records to paper form orwith respect to converting electronicrecords from one electronic formatto another. Because the database isonly accessible with proprietarysoftware, the lawyer offers to con-vert it to a format that can be usedwith non-proprietary database soft-ware, at the lawyer’s expense.Because the database is voluminousand the former client would havethe ability to access it in a non-pro-prietary format, the lawyer need notprovide the database in paper form.

• The former client is an individualwho has not retained substitutecounsel because she intends to rep-resent herself pro se in a pendingproceeding in which a hearing isscheduled in the near future. Theformer client needs the lawyer’s fileto represent herself but has noaccess to a computer. The lawyer’selectronic file, if printed, wouldconsist of several hundred pages.Under these circumstances, the for-mer client’s need for the papercopies is significant and the burdenon the lawyer to provide the records

in paper form appears to be mini-mal. Therefore, the lawyer shouldbear the cost of providing the file tothe former client in paper form.11

• The lawyer has provided the for-mer client with the client’s file inelectronic form. The former clienthas a computer and printer, butdoes not have the software neces-sary to view the lawyer’s electron-ic records. The former client has asignificant need for the records.The lawyer offers to provide theformer client with the necessarysoftware at the lawyer’s expense.The former client is capable ofinstalling the software, and theformer client’s computer is capa-ble of running the software. Underthese circumstances, the lawyer isnot obligated to pay the cost ofconverting the any of the electron-ic records to paper form.

Even if the lawyer must bear the costof converting the electronic records topaper form, however, the lawyer maycharge the former client for the reason-able time and labor expense associatedwith locating and reviewing the electron-ic records where such time and expenseresults from special instructions orrequests from the former client. See D.C.Legal Ethics Op. 283 (1998) (“review ofthe files is being undertaken for the ben-efit of the client and, like other forms ofclient services, may be compensated by areasonable fee”).12

In circumstances where the lawyer ispermitted to charge the former clienteither for time and expense associatedwith either converting electronic recordsto paper form at the former client’srequest or for time and expense associat-ed with locating, reviewing, and prepar-ing records in accordance with the formerclient’s instructions, the lawyer shouldinform the former client in advance thatthe former client will be charged andexplain the basis on which the formerclient will be charged.

Conclusion

Lawyers may maintain many types ofclient records solely in electronic form,but need to be aware of restrictions as toparticular types of documents. Lawyersand clients may agree to reasonable pro-visions relating to electronic records andrequests for conversion to paper form.Absent such an agreement, a lawyer mustcomply with a reasonable request by aformer client to provide electronicrecords in paper form. In most cases, theformer client should bear the cost of con-verting to paper form any records thatwere properly maintained in electronicform, but in certain circumstances thelawyer may be required to bear the cost.

Published: December 2010

Opinion No. 358

Subpoenaing Witness When Lawyer

for Congressional Committee Has

Been Advised that Witness Will

Decline to Answer Any Questions on

Claim of Privilege; Legal Ethics Opin-

ion 31 Revisited.

D.C. Legal Ethics Opinion 31 (1977)concluded that it was a violation of theformer Code of Professional Responsi-bility for a congressional staff lawyerto require a witness to appear before acongressional committee when thecommittee has been informed that thewitness will invoke the self-incrimina-tion privilege as to all substantivequestions “and the sole effect of thesummons will be to pillory the wit-ness.” The committee declines arequest to vacate Opinion 31 but notesthat under the D.C. Rules of Profes-sional Conduct, as under the formerCode of Professional Responsibility, aviolation occurs only where the sum-mons serves no substantial purpose“other than to embarrass, delay, or bur-den” the witness.

348 THE DISTRICT OF COLUMBIA BAR February 2011

10It is common in litigation for the court to

enter a protective order restricting use and disclo-sure of documents produced in discovery that con-tain confidential business information or aresensitive for other reasons. Sometimes such ordersallow only counsel and experts to see the confiden-tial documents and do not permit lawyers to sharethe documents with their clients. In addition, suchorders often require that the adverse party’s docu-ments be returned or destroyed when the litigationhas ended. For purposes of this opinion, we assumethat there are no such restrictions on the lawyer’sability to provide documents to the former client.

11The District of Columbia Court of Appeals

recently addressed the timeliness of a lawyer’sresponse to a former immigration client’s requestfor his file. Although the lawyer delayed only fivedays in providing the file, the Court found thisdelay to violate Rule 1.16(d) under the circum-stances, because “the five-day delay represented asignificant proportion of the thirty days respon-dent’s client had to appeal his deportation order.”In re Thai, 987 A.2d 428, 430 (2009). Moreover,during the five-day delay, the former lawyer“repeatedly denied requests for the files and active-ly obstructed the efforts of his former client and thesuccessor attorney to obtain the file.” Id. The Courtreiterated its prior statements that “a ‘client shouldnot have to ask twice’ for his file,” that “the clientis owed an ‘immediate return’ of his file ‘no matterhow meager,’” and that “Rule 1.16(d) ‘unambigu-ously requires an attorney to surrender a client’sfile upon termination of the representation.’” Id. at430-31 (citations omitted).

12 Wisconsin Legal Ethics Opinion E-00-03

(2003) advises that, although a lawyer must pro-vide electronic documents to a client at thelawyer’s expense (which is minimal), “a lawyermay charge a client for staff and professional timenecessarily incurred to search databases to identifyfiles that contain documents that may fall withinthe client’s request.”

Applicable Rules

• Rule 3.4—Fairness to OpposingParty and Counsel

• Rule 3.5—Impartiality and Deco-rum of the Tribunal

• Rule 3.8—Special Responsibilities ofa Prosecutor

• Rule 4.4—Respect for Rights ofThird Person

• Rule 5.2—Subordinate Lawyers• Rule 8.4—Misconduct

Inquiry

The Request

The Legal Ethics Committee (“Com-mittee”) has received a request(“Request”) to vacate Legal Ethics Opin-ion No. 31 (“Opinion 31” or “the Opin-ion”), which the Committee rendered in1977 under the former D.C. Code of Pro-fessional Responsibility (“D.C. Code”).The Request explains that witnesses sub-poenaed to appear before congressionalcommittees have on occasion interpretedOpinion 31 as concluding that com-pelling the public appearance of a wit-ness who had declared that he wouldassert his self-incrimination privilege inresponse to all questions constituted a perse violation of the D.C. Code. Based onthis interpretation, some witnesses haverefused to appear before Congress.

The Request asserts that various legalauthorities “establish that there are legiti-mate reasons for a congressional commit-tee and its staff to summon a witnesseven when the witness indicates inadvance an intent to invoke the FifthAmendment privilege.” Among these,according to the Request, are the com-mittee’s right to evaluate the privilegeassertion, the possibility that the witnesswill waive or not assert the privilege, thepossibility that the committee will agreeto hear the witness in executive session,and the possibility that the committeewill immunize the witness’s testimonyunder 18 U.S.C. § 6005.

The Request also states that Opinion31 did not take into account the SupremeCourt’s 1976 decision in Baxter v. Palmi-giano, 425 U.S. 308 (1976), which theRequest asserts permits the finder of factin a civil proceeding to draw an adverseinference from a witness’s invocation ofthe privilege.1 According to the Request,this law “make[s] absolutely clear that,

given the inferences that can appropriate-ly be drawn in civil contexts from arefusal to testify [on self-incriminationgrounds], there are legitimate reasons forattorneys for congressional committeesto call witnesses even if it appears suchwitnesses plan to assert the Fifth Amend-ment privilege.” The Request concedesthat calling a witness solely to harass orembarrass that person “is not appropri-ate.”

Finally, the Request notes that theOpinion was decided under the now-superseded D.C. Code and states that—

[a]lthough the ethical considerations

against calling a witness solely to harass

remain [under the D.C. Rules of Profes-

sional Conduct], Opinion No. 31’s

apparent assumption that there can be no

legitimate purpose for calling a witness

who has indicated he or she will assert

the Fifth Amendment privilege simply

cannot stand in light of the clear legal

authority set forth above.

D.C. Legal Ethics Opinion No. 31

In Opinion 31, the Committeedescribed the inquiry before it as follows:

We have been asked to advise whether it

is proper for a congressional committee

whose chairman, staff and several mem-

bers are attorneys to require a witness

who is a “target” of a pending grand jury

investigation to appear at televised hear-

ings to be questioned when the commit-

tee has been notified in advance that the

witness will exercise his constitutional

privilege not to answer any questions.

Op. 31. The Opinion began its analysisby conceding that “[i]t is not per seimproper . . . to cause a witness to besummoned in furtherance of a legitimatelegislative function of Congress, eventhough the resultant attending publicitywill be damaging to the witness’ reputa-tion and possibly prejudicial to him in afuture criminal trial.” Id. (emphasisadded). The Opinion continued, however,that “the inquiring power of a congres-sional committee is limited to obtaininginformation in aid of Congress’ legisla-tive function” and that “[t]here is no con-gressional power to expose for the sakeof exposure.” Id.

Acknowledging that this Committee’sjurisdiction is confined to rendering opin-ions on the applicability of the ethicsrules to the conduct of staff attorneys act-ing in their capacities as attorneys, theOpinion stated that “the inquiry before usposes the issue whether it is ethical tosummon a witness [before a congression-al committee] when it is known in

advance that no information will beobtained and the sole effect of the sum-mons will be to pillory the witness.” Op.31 (emphasis added).

The Opinion discussed rulings andstandards to the effect that calling a wit-ness in a criminal proceeding, when it isknown that the witness will invoke,across the board, his privilege againstself-incrimination, constitutes prosecuto-rial misconduct.2 Analogizing to thoseauthorities, the Opinion concluded thatsuch conduct by a lawyer for a congres-sional committee “appears to be in con-flict with at least the spirit of” D.C.Disciplinary Rule (“DR”) 7-106(C)(2).That rule barred a lawyer from asking awitness before a tribunal any question“that [the lawyer] has no reasonable basisto believe is relevant to the case and thatis intended to degrade a witness.” D.C.Code DR 7-106(C)(2) (superseded1991). The Opinion concluded thatalthough a congressional committeearguably is not a “tribunal,” the principlethat an attorney should not ask a witnessquestions that are “intended to degrade”him was applicable and that a question towhich the inquiring lawyer knows theresponse will be the witness’s invocationof his privilege against self-incriminationis by definition irrelevant. Id.

Opinion 31 also considered whethersuch conduct would constitute “conduct. . . prejudicial to the administration ofjustice,” in violation of D.C. Code DR1-102(A)(5). A majority of the commit-tee concluded that “the language of thisstandard is too vague to permit its appli-cation as a disciplinary rule,” Opinion 31n. 3, though a few months later, the Dis-trict of Columbia Court of Appealsupheld the rule against a claim of uncon-stitutional vagueness, In re Keiler, 380A.2d 119, 126 (D.C. 1977).3

February 2011 THE DISTRICT OF COLUMBIA BAR 349

1The Request cites Rad Services v. Aetna Casu-

alty & Surety Co., 808 F. 2d 271, 275-77 (3d Cir.1986), Brink’s Inc. v. City of New York, 717 F.2d700, 707-10 (2d Cir. 1983), and In re VitaminAntitrust Litigation, 120 F. Supp. 2d 58, 68 (D.D.C.2000), as progeny of Baxter.

2 United States v. Coppola, 479 F.2d 1153, 1160

(10th Cir. 1973); San Fratello v. United States, 340F.2d 560, 564 (4 Cir. 1965); United States v. Tuck-er, 267 F.2d 212, 215 (3d Cir. 1959); see ABA Proj-ect on Standards for Criminal Justice ¶ 5.7(c)(unprofessional to call witness under such circum-stances “for the purpose of impressing upon thejury the fact of the claim of privilege”).

3 The Opinion also concluded that such conduct

violated several D.C. Ethical Considerations(“ECs”). These were D.C. EC 7-10, which calledupon lawyers to treat persons involved in the legalprocess with consideration and to avoid inflictingneedless harm, D.C. EC 7-14, which exhorted gov-ernment lawyers not to harass parties, and D.C. EC7-25, which said that a lawyer should not ask a wit-ness a question “solely for the purpose of harassingor embarrassing him.” Under the D.C. Code, theEthical Considerations were “aspirational in char-acter,” whereas the Disciplinary Rules weremandatory. D.C. Code Preliminary Statement. The

Discussion

The D.C. Rules of Professional Con-duct (“D.C. Rules” or “Rules”) supersed-ed the D.C. Code effective January 1,1991.4 Several provisions of the Rulesare relevant to the issue presented by theRequest.

Rule 4.4(a) states that “a lawyer shallnot use means that have no substantialpurpose other than to embarrass, delay, orburden a third person.” The commentsobserve that it is not possible to catalogall the third-party rights that the rulemight implicate. D.C. Rule 4.4, cmt. [1].

Rule 8.4(d) prohibits a lawyer from“engag[ing] in conduct that seriouslyinterferes with the administration of jus-tice.” Comment [2] states that this prohi-bition is intended to include conductproscribed by the similarly worded provi-sion of the D.C. Code, which was DR 1-102(A)(5).5 Comment [3] to Rule 8.4,which was among the 2007 amendmentsto the Rules, states that “offensive, abu-sive, or harassing conduct that seriouslyinterferes with the administration of jus-tice” violates Rule 8.4(d). Moreover, atleast one ethics opinion issued under theD.C. Rules admonishes lawyers not toharass opponents. D.C. Op. 258 n. 4(1995).6

Filing a frivolous lawsuit violates Rule4.4, Attorney Grievance Comm’n v.Richardson, 712 A.2d 525 (Md. 1998),and Rule 8.4(d), Iowa Supreme Court Bd.of Prof’l Ethics & Conduct v. Ronwin,557 N.W.2d 515 (Iowa 1996). Unjusti-fied personal attacks on opponents vio-late both rules. In re Golden, 496 S.E.2d619 (S.C. 1998); In re Vincenti, 704 A.2d927 (N.J. 1998). Moreover, the misuse ofofficial authority by a prosecutor—aposition akin to counsel for an investiga-tive congressional committee—violatesRule 8.4(d). In re Christoff, 690 N.E. 2d1135 (Ind. 1997).

Finally, a violation of Rule 8.4(d)“does not have to be affiliated specifical-ly with the judicial decision-makingprocess; the conduct simply must bear onthe administration of justice.” In reMason, 736 A.2d 1019, 1023 (D.C.1999). Moreover, “‘conduct that is preju-dicial to the administration of justice’ canbe equated to ‘conduct unbecoming amember of the bar.’” Id. (quoting In reSolerwitz, 575 A.2d 287, 292 (D.C.1990)); see In re Keiler, 380 A.2d 119(D.C. 1977) (finding violation of prede-cessor to Rule 8.4(d) where lawyer con-ducted sham arbitration proceeding).

Opinion 31 does not establish a per serule that compelling a witness to testifybefore a congressional committee when itis known in advance that the witness willinvoke the Fifth Amendment privilegeviolates the ethics rules. Opinion 31 pro-vides that an attorney violates the ethicsrules only when he knows that summon-ing a witness to appear (1) will provideno information to the committee and (2)is intended merely to degrade a witness.Specifically, the Opinion states that theissue is “whether it is ethical to summona witness when it is known in advancethat no information will be obtained andthe sole effect of the summons will be topillory the witness.” The Opinion furthernotes that “DR 7-106(C)(2) prohibitsonly questions that the lawyer has no rea-

sonable basis to believe are relevant andthat are ‘intended to degrade’ as well.”Op. 31 (emphasis added).

The Request has not persuaded us thatthe revised Rules of Professional Con-duct, or other governing law, require us tovacate the Opinion. First, the Requestconcedes the critical point that calling awitness solely to harass or embarrass thatperson is not appropriate. We agree andconclude, as we did in Opinion 31, thatsuch conduct violates the Rules.

Second, the Request suggests that theOpinion assumes that there can be nolegitimate purpose for calling a witnessbefore Congress when it is known thatthe witness will assert the privilege. Wedo not read Opinion 31 as making thatassumption. The Opinion asserts thatwhere an attorney has some questionwhether the witness will assert the privi-lege, there is no need to test that claim ofprivilege in public and the claim can beresolved by calling the witness in execu-tive session. We do not read the Opinionto mean, however, that the only legiti-mate purpose for calling a witness is todetermine whether he will assert the priv-ilege.

Third, the Request relies heavily on theSupreme Court’s decision in Baxter,which held that an adverse inferenceproperly may be drawn from an inmate’ssilence at his disciplinary proceedings.Baxter, 425 U.S. at 320. Baxter and itsprogeny allow fact-finders to draw anadverse inference in civil proceedingsfrom the invocation of the Fifth Amend-ment privilege. It is not clear, though,how that rule alters the threshold ethicalquestion presented in Opinion 31. TheRequest asserts that this case law under-mines “Opinion No. 31’s apparentassumption that there can be no legiti-mate purpose for calling a witness whohas indicated he or she will assert theFifth Amendment privilege.” Asexplained above, however, that assertionis based on a misreading of the Opinion.Only where the sole purpose of proceed-ing is to degrade the witness is there aviolation of the Rules of ProfessionalConduct.

Opinion 31 correctly asserted thatwhen an attorney causes a witness to becalled for the sole purpose of harassing ordegrading that witness, that attorney vio-lates our rules. See Rules 4.4, 8.4(d).Similarly, a lawyer would violate Rule8.4(d) by engaging in abuse or harass-ment of the witness. Further, such con-duct by a staff lawyer might constituteassisting another in violating the rules.See D.C. Rule 8.4(a). In addition to par-

350 THE DISTRICT OF COLUMBIA BAR February 2011

Code added, though, that an agency applying theDisciplinary Rules “may find interpretive guidancein the basic principles embodied in the Canons andin the objectives reflected in the Ethical Considera-tions.” Id. The D.C. Rules of Professional Conduct,which superseded the D.C. Code in 1991, do notcontain “aspirational” guidelines akin to the Code’sEthical Considerations.

4 There have been a number of subsequent

changes to the D.C. Rules but aside from the newcomment [3] to Rule 8.4, which took effect Febru-ary 1, 2007, none is material to this opinion.

5 As noted above, when this committee issued

Opinion 31, a majority of the members found the lan-guage of the predecessor provision “too vague to per-mit its application as a disciplinary rule,” D.C. EthicsOp. 31 n. 3 (citing D.C. Code DR 1-102(A)(5)), butthe D.C. Court of Appeals subsequently upheld thecited Code provision against a vagueness challenge,see In re Keiler, 380 A.2d at 126.

6Instructive, though not literally applicable, are

Rules 3.4, 3.5, and 3.8. Rule 3.4(e), whose prede-cessor rule Opinion 31 applied by analogy to theconduct at issue here, prohibits a lawyer from, “[i]ntrial, allud[ing] to any matter that the lawyer doesnot reasonably believe is relevant.” Rule 3.5(d)prohibits a lawyer from engaging in “conductintended to disrupt any proceeding of a tribunal.”A congressional committee ordinarily is not a “tri-bunal” because it is not adjudicatory in character.See D.C. Rule 1.0(n) (defining “tribunal”). Such acommittee might be a tribunal, though, when delib-erating and voting on whether to recommend to itshouse of Congress that a witness be cited for con-tempt of Congress. See id.

Comment [2] to Rule 3.8, which sets forth specialresponsibilities of prosecutors, permits publicrelease of an indictment but condemns—

extrajudicial comment by a prosecutor thatserves unnecessarily to heighten public con-demnation of the accused without a legiti-mate law enforcement purpose before thecriminal process has taken its course. Whenthat happens, even if the ultimate trial is notprejudiced, the accused may be subjected tounfair and unnecessary condemnation beforethe trial takes place. Accordingly, a prosecu-tor should use special care to avoid publicity,such as through televised press conferences,which would unnecessarily heighten con-demnation of the accused.

ticipation in the hearing itself, such relat-ed activities as preparing subpoenas alsocould subject a lawyer to sanctions,though we note that Rule 5.2 protects asubordinate lawyer who acts at the direc-tion of a supervising attorney so long asthere is a reasonable argument that call-ing the witness is permitted by the Rules.See D.C. Rule 5.2 & com. [2].7

Conclusion

The Request correctly observes thatthere may be legitimate reasons for acongressional committee to summon awitness who expresses an intention toassert her privilege against self-incrimi-nation. Because the Opinion is consistentwith that fact and because the Rules ofProfessional Conduct are violated only ifthere is no substantial purpose in callinga witness other than embarrassment, bur-den, or delay, we decline to vacate Opin-ion 31.

Published: January 2011

Opinion No. 359

Disposition of Missing Client’s Trust

Account Monies in the District of

Columbia

Following reasonable but unsuccessfulefforts to locate a missing client or for-mer client, a lawyer should presume themissing client’s trust account moniesabandoned and, if the circumstances fallwithin D.C.’s Unclaimed Property Act,must dispose of the property as directedby that statute.

Applicable Rules

• Rule 1.6—Confidentiality of Infor-mation

• Rule 1.14—Client with DiminishedCapacity

• Rule 1.15—Safekeeping Property

Inquiry

The D.C. Bar’s Legal Ethics Helplineregularly receives calls from lawyersseeking to learn what they can and shoulddo with client trust account monies whenthe client’s whereabouts are unknown.Often, the lawyer is retiring from legalpractice, his or her firm is closing, or heor she otherwise wants to close an out-

standing trust account, but cannot locatethe client.

Discussion

The inquiry raises questions that relateto both D.C. Rule of Professional Con-duct 1.15 and the D.C. Unclaimed Prop-erty Act.

D.C. Rule 1.15

A central tenet in legal ethics is that alawyer must safeguard property of clientsand third parties that is in the lawyer’spossession as a result of a representation.D.C. Rule 1.15(a) specifically requiresthat a lawyer hold property of a client (ora third person), including intangibleproperty, separate and apart from thelawyer’s own funds, in a trust account,and Comment [1] instructs that a lawyershould exercise the care of “a profession-al fiduciary” in managing client funds.Rule 1.15(c) requires that when a lawyerreceives funds in which a client or thirdparty has an interest the lawyer mustpromptly 1) notify the client or thirdparty; and 2) deliver to the client or thirdperson any funds or other property thatthe client or third person is entitled toreceive except as stated in this Rule orotherwise permitted by law or by agree-ment with the client. Rule 1.15 is silent,however, on the specific issue of what isrequired or permitted if a lawyer isunable to locate a client, but is nonethe-less in possession of trust funds belong-ing to the missing client.1

D.C. Unclaimed Property Act

While the Committee does not opineon questions of law outside of the Rulesof Professional Conduct, we set forth ourunderstanding of the D.C. UnclaimedProperty Act for the purpose of analyzingthe issues presented under the D.C. Rulesof Professional Conduct. Section 103(a)of the District of Columbia UnclaimedProperty Act provides that:

All intangible personal property …,including any income …, that is held orowing in the ordinary course of theholder’s business and has remainedunclaimed by the owner for more than 3years after it became payable or distrib-utable is presumed abandoned.2

The Act by its terms applies to intangiblepersonal property owned by individualswhose last known address is in the Dis-trict of Columbia or where the holder isdomiciled3 in the District.4

June 2011 THE DISTRICT OF COLUMBIA BAR 351

7 We express no opinion on the propriety of a

witness invoking an opinion of this committee as abasis for refusing to comply with a congressionalsubpoena.

1Rule 1.15(d) addresses the situation when a

lawyer is in possession of property in which aninterest is claimed by “two or more persons to eachof whom the lawyer may have an obligation.” InLegal Ethics Opinion 293, the Committee clarifiesthat an obligation under Rule 1.15(d) arises when athird party has a “just claim” to the property thatthe lawyer has a duty under applicable law to pro-tect against wrongful interference by the lawyer’sclient. In such circumstances, under Rule 1.15(d),the disputed funds must be kept separate by thelawyer until there is “an accounting and severanceof interests in the property.”

The Committee doubts that Rule 1.15(d) isimplicated in the current inquiry. As an initial mat-ter, the lawyer here is not protecting the funds fromwrongful interference of the client; indeed, the Dis-trict’s interest arises only in the absence of theclient. Significantly, the interest claimed by theDistrict is one of “custodian” and not creditor. Sur-rendering the property to the District is not funda-mentally adverse to the interests of the client, whoeven years later, pursuant to the Act, can reclaimthe property from the District and indeed theDistrict is legally obligated to return such funds.A lawyer’s duty of loyalty to the client is thereforenot compromised in following the Act’s direc-tives. Such a duty is the underlying rationale forRule 1.15(d)’s directive to the lawyer to merely“preserve” disputed funds and not to unilaterally

assume to “arbitrate a dispute” between a client anda third party. (See D.C. LEO 293). Even if Rule1.15(d) were to apply, the Act “by operation oflaw” constitutes a severance of the interests in theproperty by deeming the property “presumed aban-doned.” We think, the lawyer, commits no ethicalviolation in complying with the Act. Of finalimport is the recognition that as custodian of themissing client’s funds, the lawyer effectively trans-fers his or her fiduciary obligation to safeguard theproperty to the District as required by law.

2D.C. Code sec. 41-103(a). Section 41-103, by

its terms, applies to intangible property. Thoughthe Act is entitled “Unclaimed Property,” its “Pur-pose” section speaks of “personal property” and notjust “intangible personal property” (sec. 41-101),and its reporting section refers to “property, tangi-ble or intangible, presumed abandoned” (sec. 41-117), the reference to “tangible” property appearsto be limited to property contained within safe-deposit boxes or other “safekeeping repositories.”Underscoring the Act’s focus on intangible proper-ty, its “Definitions” section defines “property” asan “interest in or right in an intangible property.”(sec. 41-102(16A))

D.C. Legal Ethics Opinion 283, “Disposition ofClosed Client Files,” should be consulted on ques-tions of what can be done with tangible property,such as client files, under analogous circumstances.Opinion 283 noted that lawyers could invoke statelaw procedures for unclaimed property, whereapplicable, but also pointed out that “[t]he avail-ability of such procedures is a matter of state law.”As with intangible property, lawyers need to deter-mine for themselves under what circumstances tan-gible property is subject to the unclaimed propertylaws of one or more jurisdictions.

3“Domicile” is defined under D.C.’s Unclaimed

Property Act as an individual’s principal place ofbusiness. D.C. Code sec. 41-102(6)(B). Accord-ingly, there may be choice of law issues involvedhere. The Committee notes that most jurisdictionshave an unclaimed property act and that a lawyerwill want to check his or her jurisdiction’s act.

4See D.C. Code sec. 41-104. Lawyers should be

aware that if the last known address of the owner of

Section 41-117 of the Act provides that“[e]very person holding funds or otherproperty … presumed abandoned underthis chapter shall report to the Mayorwith respect to the property …”5 The Actfurther provides that “the holder of prop-erty presumed abandoned shall send writ-ten notice to the owner, not more than120 days or less than 60 days before fil-ing the report, stating that the holder is inpossession of property subject to thischapter.”6 Section 41-119 requires thatthe holder of the abandoned propertytransfer such property to the Mayor uponthe filing of the report required by section41-117. After the funds are transferred,D.C. Code sec. 41-132 mandates that thelawyer is obliged to maintain “a record ofthe name and address of the owner for 10years after the date the property mayhave become reportable.” The Act con-tains no exemption for lawyers.

Applying Rule 1.15 and theUnclaimed Property Act to the presentinquiry, this Committee concludes that alawyer must make reasonable efforts tolocate a missing client whose last knownaddress is in the District or where thelawyer’s principal place of business is inthe District to return that client’s trustaccount monies. Reasonable efforts tolocate a missing client might includeusing available internet technologies andon-line directories, sending a certifiedletter with return receipt requested to theclient’s last known address, contactingfriends or relatives, or posting a notice ina newspaper of general circulation in thevicinity of the last known address of theproperty owner.

Under Rule 1.15, such efforts shouldtake place promptly after the fundsbecome due to the client. Rule 1.15(c)states “a lawyer shall promptly deliverto the client or third person any fundsor other property that the client or thirdperson is entitled to receive.” Typical-ly, unused funds from the client held intrust to pay legal fees and costs are dueand payable to the client when the rep-resentation concludes.7 Funds receivedin settlement from a third party aretypically due the client when receivedby the lawyer. Accordingly, the lawyer

presumably has already attempted tolocate the client. Prior to reporting theproperty as abandoned to the Mayorand tendering the property to theMayor’s custody, however, the lawyershould undertake renewed efforts tolocate the client and tender the proper-ty to the client. Indeed, under the Act,the lawyer is required to send writtennotice to the missing client “not morethan 120 days or less than 60 days”before the transfer of the missingclient’s monies to the Mayor.8

Given the mandatory nature of theAct’s directive and the absence of anexemption for lawyers under the Act,we conclude that a lawyer does notviolate Rule 1.15 if the lawyer files thereport required by the Act and similar-ly transfers a missing client’s fundsthat are deemed to be abandoned to theMayor’s Office, when the monies havebeen unclaimed by a client for “morethan 3 years after [they] becamepayable or distributable.”9 Our conclu-sion is limited and rests upon our read-ing of the plain language of the Act.We do not mean to foreclose a lawyerfrom challenging the application of theAct to a particular scenario or even theAct’s general applicability to lawyers.Cf. D.C. Rule 3.4(c) (no ethics viola-tion if lawyer disobeys obligation to atribunal with “an open refusal based onan assertion that no valid obligationexists”).

Our conclusion that a lawyer has aduty to transfer a missing client’s fundsthat are deemed to be abandoned to theMayor is supported by the D.C. Court ofAppeals’ recent decision in Bergman v.District of Columbia, holding that theD.C. Rules of Professional Conduct donot trump a duly enacted D.C. statute,10

such as the D.C. Unclaimed Property Act,especially where, as in the present case,the D.C. statute is mandatory in nature,and the D.C. professional responsibilityrules are silent on the issue. Indeed, wenote that substantial fines can be assessedfor failure to transfer abandoned property

to the Mayor under these circumstances –up to $25,000 plus 25% of the value ofthe abandoned property.11

D.C. Rule 1.6

We note that the Act can implicateclient confidentiality under D.C. Rule 1.6because the requirement to transfer amissing client’s funds to the Mayor’soffice and provide identifying informa-tion for same involves disclosure of theclient’s identity.12 Of course, Rule1.6(e)(2)(A) contains an exception fordisclosures required by law. In matterswhere the information is required underD.C. Code 41-117, the lawyer shouldtake care to craft the disclosure in such away as to minimize disclosure of Rule1.6 information.13

352 THE DISTRICT OF COLUMBIA BAR June 2011

the intangible property is in another state that alsohas an unclaimed property act, then that state’sunclaimed property act may apply. See D.C. CodeSec 41-104(4).

5D.C. Code sec. 41-117(a).

6D.C. Code sec. 41-117(e)(1).

7 D.C. Rule 1.16(d).

8D.C. Code sec. 41-117(e)(1). The Mayor is

obligated to “cause notice to be published at leastonce each week for 2 consecutive weeks in anewspaper of general circulation in the District,”D.C. Code sec. 41-118(a), and, if the value of theabandoned property is $50 or more, to “mail a noticeto each person having an address listed whoappears to be entitled to property of a value of $50or more presumed abandoned under this chapter.”D.C. Code sec. 41-118(d).

9D.C. Code sec. 41-103.

10986 A.2d 1208, 1230 (D.C. 2010).

11 D.C. Code sec. 41-135. More specifically,

section 41-135 provides:

(a) Any person who fails to pay or deliverproperty within the time prescribed bythis chapter shall be required to pay inter-est at the rate of 1½% per month or frac-tion of a month on the property or value ofthe property from the date the propertyshould have been paid or delivered.

(b) Except as otherwise provided in subsec-tion (c) of this section, a holder who failsto report, pay, or deliver property withinthe time prescribed under this chapter, orfails to perform other duties imposed bythis chapter, shall pay to the Mayor, inaddition to the interest as provided in sub-section (a) of this section, a civil penaltyof $200 for each day the report, payment,or delivery is withheld, or the duty is notperformed, up to a maximum of $10,000.

(c) A holder who willfully fails to report, pay,or deliver property within the time pre-scribed under this chapter, or fails to per-form other duties imposed by this chapter,shall pay to the Mayor, in addition to theinterest as provided in subsection (a) ofthis section, a civil penalty of $1000 foreach day the report, payment, or deliveryis withheld, or the duty is not performed,up to a maxim [sic] of $25,000, plus 25%of the value of any property that shouldhave been paid or delivered.

12See D.C. Code sec. 41-117.

13We note that the Act’s confidentiality provi-

sion, section 41-131, states:

Any information or records required to befurnished to the Mayor as provided in thischapter shall be confidential and shall not bedisclosed to any person except the personwho furnished the same to the Mayor andexcept as provided in sections 41-118 (noticeof abandoned property) and 41-123 (depositof funds) or as may be necessary in the prop-er administration of this chapter alone.

The Act potentially implicates client confidentiali-ty under Rule 1.6 because the Act’s requirement totransfer a missing client’s funds to the Mayor’soffice and provide identifying information for sameinvolves disclosure of the client’s identity. We rec-

***Finally, we note the possibility that the

missing client might have been a minor atthe time of the representation and that heor she might not learn of the trust accountmonies until reaching the age of majority.Pursuant to Rule 1.14 regarding clientswith diminished capacity (here, by age),the lawyer should consider moving therelevant court for a protective orderauthorizing the continued safekeeping ofthe missing client’s trust account moniesuntil three years after the client hasreached the age of majority, drawing onthe Act’s three-year period for deemingproperty abandoned.

Conclusion

A lawyer who is in possession of funds(or other intangible personal property)belonging to a client who cannot belocated, and whose last known address isin the District of Columbia (or where thelawyer is domiciled in the District), mustexhaust reasonable efforts to locate theclient as described more particularlyabove. Thereafter, it is not a violation ofthe D.C. Rules of Professional Conductfor a lawyer in such circumstances toreport to the Mayor and transfer clientfunds that are deemed to be abandoned asrequired by the D.C. Unclaimed PropertyAct.

Published: June 2011

Opinion No. 360

Contact With Non-Party Treating

Physician Witness

The principal question presented iswhether a lawyer may ask his or herclient’s treating physician not to have exparte communications with opposing

counsel in a medical malpractice casewhere legal restrictions on such commu-nications based on privacy laws and/orphysician-patient privilege have beenremoved.

Under D.C. Rule 3.4(f), the lawyermay inform his or her client’s treatingphysician that the treating physician hasno obligation to speak with opposingcounsel and that the treating physicianmay decline to speak to opposing counselwithout the lawyer also present. To theextent that privacy laws or applicableprivileges may restrict the scope of infor-mation that the treating physician maydisclose, the lawyer may also demandthat the physician comply with confiden-tiality obligations that have not beenremoved and may state his or her client’sposition as to the scope of informationthat may be legally disclosed. The lawyermay not, however, request or instruct thephysician not to have communicationswith opposing counsel or request orinstruct that any communications takeplace only if the lawyer is present.

Applicable Rules

• Rule 3.4(a), (f)—Fairness to Oppos-ing Party and Counsel

• Rule 4.4(a)—Respect for Rights ofThird Persons

• Rule 4.3—Dealing with Unrepre-sented Person

Inquiry

The Committee has received aninquiry from a lawyer who handles med-ical malpractice cases. In at least onecase, the court has entered a qualifiedprotective order which the lawyerdescribes as lifting restrictions on exparte communications between defensecounsel and the plaintiff’s treating physi-cian under the Health Insurance Portabil-ity and Accessibility Act (HIPAA). Insuch a situation, the plaintiff’s counselwould prefer that the treating physiciannot have ex parte communications withdefense counsel. The lawyer asks threequestions about the information orrequests the plaintiff’s counsel may ethi-cally convey to the client’s physician.First, may the plaintiff’s counsel requestthat the physician decline to speak withdefense counsel? Second, if the answer tothe first question is negative, may theplaintiff’s counsel inform the treatingphysician that he or she is not required tospeak with defense counsel if the physi-cian does not want to? Third, may plain-tiff’s counsel request that the physiciandecline to speak with defense counsel

unless plaintiff’s counsel is also present?

Discussion

The question presented is primarilygoverned by Rule 3.4(f) of the D.C.Rules of Professional Conduct. Beforeaddressing the applicability of Rule3.4(f), however, we address briefly athreshold issue. Because the person whowould be providing information is atreating physician, there is an initial issueregarding whether defense counsel’scommunications with the treating physi-cian are restricted by Rule 4.4(a), whichprohibits a lawyer from “knowinglyus[ing] methods of obtaining evidencethat violate the legal rights of [a third]person.” Comment [1] to Rule 4.4(a)states that the lawyer’s responsibility to aclient

does not imply that a lawyer may disre-

gard the rights of third persons. It is

impractical to catalogue all such rights,

but they include legal restrictions on

methods of obtaining evidence from

third persons and unwarranted intru-

sions into privileged relationships, such

as the client-lawyer relationship.

Such rights would also include legal pro-tections applicable to the physician-patient relationship arising from privacylaws or any applicable physician-patientprivilege.1 Thus, Rule 4.4(a) would pro-hibit defense counsel from asking thetreating physician questions elicitinginformation that would be privileged orotherwise legally protected.

In the scenario presented, we assumethat any absolute bars to the treating-physician’s disclosure to defendant’scounsel of medical information relatingto the plaintiff have been removed as aresult of the qualified protective orderreferred to by the inquiring lawyer and/orby waivers of privilege resulting from theinstitution of the malpractice litigation.At the same time, however, we assumethat there still may be legal restrictions

August 2011 THE DISTRICT OF COLUMBIA BAR 353

ognize that there are situations in which the client’sname and/or the fact that the client consulted a par-ticular attorney could be a client confidence. See,e.g. D.C. Legal Ethics Op. 312 (2002); Conn.Ethics Op. 99-35 (1999) (lawyer participating inreferral program that offers services to bankruptcyclients and pays lawyer for each referral mustobtain client consent before disclosing client’sname to program); Ill. Ethics Op. 97-1 (lawyer mayprovide bank with names of clients as potentialbank customers only with clients’ consent).

Rule 1.6(e) permits disclosure of confidentialinformation when required by law. In this situa-tion, disclosing a client’s name is permissiblebecause it is required by the Act. (Our conclusionmight differ if another state’s unclaimed propertyact applied.) Nevertheless, a lawyer may consideradvising his or her client that his or her identitymay be divulged when the lawyer has to report it tothe Mayor’s office.

1The Committee does not opine on legal issues,

but offers the following two examples of potentiallegal restrictions. First, under federal law, privacyrules under the Health Insurance Portability andAccessibility Act (HIPAA) generally prevent theunauthorized disclosure of “protected health infor-mation” of a patient, which is defined broadly. 45C.F.R. § 160.103 (2011). Second, the District ofColumbia has codified a physician-patient privi-lege, and a physician may not be permitted to dis-close confidential patient information without thepatient’s consent, depending on the circumstancesof a given case and a plaintiff’s potential waiver ofthe privilege by placing her physical condition atissue in litigation. See D.C. Code § 14-307; Streetv. Hedgepath, 607 A.2d 1238, 1246 (D.C. 1992).

that would preclude the physician fromdisclosing information unrelated to thelitigation.2

Based on those assumptions, we nowturn to the application of Rule 3.4(f),which provides as follows:

A lawyer shall not:

(f) Request a person other than a client

to refrain from voluntarily giving rele-

vant information to another party unless:

(1) The person is a relative or an

employee or other agent of a

client; and

(2) The lawyer reasonably

believes that the person’s inter-

ests will not be adversely affected

by refraining from giving such

information.

The first issue is whether the treatingphysician falls within any of the excep-tions in Rule 3.4(f), which are limited tothe lawyer’s client, a client’s relative, anda client’s employee or other agent. Com-ment [9] to Rule 3.4 explains that“[p]aragraph (f) permits a lawyer toadvise employees of a client to refrainfrom giving information to another party,for the employees may identify theirinterests with those of the client.” Noneof these exceptions would apply here.There is no indication that the treatingphysician is a relative or employee of theplaintiff; nor are any facts presented thatwould establish an agency relationshipbetween the client and the physician.3

Accordingly, other than the possiblelegal restrictions on the scope of what thetreating physician may disclose (an issuediscussed further below), the treatingphysician is no different from any otherwitness who is neither a client nor a rela-tive, employee, or other agent of a client,and the answer to the inquiring lawyer’sfirst question is clear. Rule 3.4(f) pro-hibits plaintiff’s counsel from requesting

that the physician decline to speak withdefense counsel.

As to the second question, althoughplaintiff’s counsel may not request that thetreating physician not communicate withopposing counsel, it is permissible forplaintiff’s counsel to inform the treatingphysician that he or she is not required tospeak with defense counsel if the physi-cian does not want to do so. See Restate-ment (Third) of The Law GoverningLawyers § 116 cmt. e (2000) (“A lawyermay inform any person of the right not tobe interviewed by any other party . . . .”).

The third question is whether plaintiff’scounsel may request that the treatingphysician not communicate with defen-dant’s counsel unless plaintiff’s counsel isalso present. In other words, plaintiff’scounsel would not be seeking to precludecommunications entirely, but would berequesting that a condition be attached toany such communications – i.e., that theyonly occur if plaintiff’s counsel is present.We conclude that, although plaintiff’scounsel may inform the treating physicianof the right to insist on the presence ofplaintiff’s counsel during any communi-cations with defendant’s counsel, plain-tiff’s counsel may not request that thephysician communicate with defendant’scounsel only if plaintiff’s counsel is pres-ent. Although Rule 3.4(f) expressly pro-hibits only a request “to refrain fromvoluntarily giving relevant information toanother party,” it would be inconsistentwith the intent of the rule to permit alawyer to request that conditions beimposed on communications with oppos-ing counsel that could discourage the wit-ness from allowing the communication.Comments to Section 116(4) of theRestatement (Third) of The Law Govern-ing Lawyers, which is generally similar toRule 3.4(f), support this conclusion:

A lawyer may inform any person of the

right not to be interviewed by any other

party, but a lawyer may not request that

a person exercise that right or attempt

otherwise to induce noncooperation,

except as permitted under Subsection

(4).4 A lawyer may also advise of the

right to insist on conditions, such as that

the lawyer or the person’s own lawyer

be present during any interview or that

the interview be recorded.

Restatement (Third) of The Law Govern-ing Lawyers § 116 cmt. e (2000). Seealso D.C. Rule 3.4(a) (“A lawyer shallnot: (a) obstruct another party’s access toevidence or alter, destroy, or conceal evi-dence, or counsel or assist another personto do so, if the lawyer reasonably shouldknow that the evidence is or may be thesubject of discovery or subpoena in anypending or imminent proceeding . . . .”).

We recognize that allowing lawyers toinform witnesses that they have no obli-gation to speak with opposing counsel, orthat they can insist on the presence ofother counsel as a condition, may resultin a decision by the witness not to speakwith opposing counsel. That possibleresult, however, is consistent with theintent of Rule 3.4(f), which is to allow thewitness to make that decision based onwhat the witness perceives to be in his orher best interest. On the other hand, Rule3.4(f) does not permit the lawyer torequest that the witness make a particulardecision.

We believe our conclusion is also con-sistent with and supported by Gregory v.United States, 369 F.2d 185 (D.C. Cir.1966). In Gregory, the prosecutor in acapital case acknowledged that “Iinstructed all the witnesses that they werefree to speak to anyone they like. How-ever, it was my advice that they not speakto anyone about the case unless I waspresent.” Id. at 187. The court held thatthis conduct deprived defendant of a fairtrial. Id. at 189; see also id. at 188 (“weknow of nothing in the law which givesthe prosecutor the right to interfere withthe preparation of the defense by effec-tively denying defense counsel access tothe witnesses except in his presence”).Gregory was decided primarily on thebasis of criminal law and procedure inthe context of a capital case and longbefore the D.C. Rules of ProfessionalConduct went into effect in 1991, so ithas no direct applicability to the questionbefore the Committee; however, our con-clusion would preclude the same conductthat the Gregory holding precludes.5

354 THE DISTRICT OF COLUMBIA BAR August 2011

2Lawyers involved in a case such as that pre-

sented by the inquiry will need to determine theextent to which there may be legal restrictions on awitness’s disclosure of information and the extentto which any such restrictions may have beenwaived, removed by court order, or otherwise lift-ed. Such legal issues are beyond the scope of thisopinion.

3We do not rule out the possibility that in a par-

ticular case, a treating physician may have becomean agent of his or her patient for particular purpos-es, but we have found no basis for treating thephysician-patient relationship as an agency rela-tionship as a general matter for purposes of Rule3.4(f). See Restatement (Third) of the Law Govern-ing Lawyers § 116 cmt. e (2000) (implying thatphysicians generally do not fall within any of theexceptions to Section 116, which includes anexception for agents of the client).

4Section 116(4) states as follows: “A lawyer

may not request a person to refrain from voluntari-ly giving relevant testimony or information toanother party, unless: (a) the person is the lawyer’sclient in the matter; or (b) (i) the person is not thelawyer’s client but is a relative or employee orother agent of the lawyer or the lawyer’s client, and(ii) the lawyer reasonably believes compliance willnot materially and adversely affect the person’sinterests.” Section 116(4) of the Restatement(Third) of the Law Governing Lawyers.

5We also note that there was some discussion of

Gregory in the context of Rule 3.4(f) when the D.C.Rules of Professional Conduct were being devel-oped. The D.C. Court of Appeals asked Robert E.Jordan, III, Chair of the D.C. Bar Model Rules ofProfessional Conduct Committee that was respon-sible for the original version of these rules, toreview the comments submitted on the proposedrules in 1988. He responded as follows to one of thecomments on proposed Rule 3.4(f):

There are several other issues raised bythe scenario presented by the inquiry.First, if (as assumed) there are still somelegal limits on the scope of informationthat the treating physician may discloseto defendant’s counsel based on privacylaws and/or applicable privileges(notwithstanding the fact that legalimpediments to the disclosure of certaininformation have been removed), it isproper for plaintiff’s counsel to demandthat the treating physician comply withlegal confidentiality obligations and toinform the treating physician of plain-tiff’s position regarding the extent ofthose obligations. Restatement (Third) ofThe Law Governing Lawyers § 116 cmt.e (2000) (“A lawyer may properlydemand that a person who is not other-wise excepted from the Subsectionobserve a legal obligation of confiden-tiality to the lawyer’s client. For example,a physician or member of the clergy whois considered to be an independent con-tractor may nonetheless owe a legal dutyof confidentiality to the client, which theclient’s lawyer may properly insist thatthe person observe.”). Second, as notedearlier, defendant’s counsel should notsolicit information the disclosure of

which remains restricted. See D.C. Rule4.4(a). Third, counsel for both sidesshould comply with Rule 4.3 in dealingwith unrepresented persons.6 See gener-ally D.C. Ethics Opinion No. 287 (dis-cussing Rules 4.3 and 4.4 in the contextof ex parte contact with former employ-ees of party-opponents).7

Conclusion

Under Rule 3.4(f), a lawyer may notrequest the client’s treating physician torefrain from having ex parte communica-tions with opposing counsel where legalimpediments to such communicationshave been removed. The lawyer may,however, inform the physician that thephysician has no obligation to speak withopposing counsel and that the physicianmay insist on the lawyer being present.The lawyer may also demand that thephysician comply with any confidentiali-ty obligations still in effect and may statehis or her client’s position regarding thescope of information that may be legallydisclosed.

Published August 2011

Opinion No. 361

Lawyer’s Acceptance of Compensa-

tion From Non-Lawyer Entity for

Referring Client to Such Entity;

Opinion 245 Overruled in Part

A lawyer who refers a client to a non-lawyer service provider such as a finan-cial services firm may acceptcompensation from the provider for thereferral so long as the criteria of Rule1.7(c) and, if applicable, Rules 1.8(a) and

5.7 are satisfied. Those criteria are exact-ing, however, and the arrangement maybe beyond the lawyer’s malpractice cov-erage even if permitted by the Rules.

Applicable Rules

• Rule 1.7—Conflict of Interest: General• Rule 1.8(a)—Conflict of Interest:

Specific Rules• Rule 5.7—Responsibilities Regard-

ing Law-Related Services

Inquiry

The committee has been askedwhether a lawyer who refers her client toa non-lawyer service provider1 mayaccept compensation from the provideror potential partner for such a referral.Although this issue can arise in variouscontexts, the particular scenario present-ed is whether a lawyer may refer herclient to a financial services firm inexchange for a referral fee. The inquireradvises that the referral arrangementwould be disclosed to the client in writ-ing and is permissible under the federalsecurities laws.2

Discussion

The foregoing scenario offers one ofthe many contexts in which fee-for-refer-ral situations can arise. Variables includewhether the transaction with the otherentity will involve “law-related services”(e.g., title insurance for a real estate pur-chase versus the purchase of an automo-bile), whether the lawyer’s representationof the client is related to the client’s trans-action with the other entity, whether thelawyer represents the other entity in unre-lated matters, and whether the lawyerowns or controls the other entity.

For the reasons set out below, webelieve that the D.C. Rules of Profession-al Conduct (“Rules” or “D.C. Rules”)permit such arrangements if certain crite-ria are satisfied. We caution, however,that the prerequisites for such an arrange-ment are exacting and that even whenpermitted by the Rules, the arrangement

December 2011 THE DISTRICT OF COLUMBIA BAR 355

The Courts/Lawyers Section expresses con-cern that Rule 3.4(f), as written, does not reflectthe limitation imposed on lawyers representingthe government in a criminal case by Gregory v.United States, 125 U.S. App. D.C. 140, 369 F.2d185 (1966), cert. denied, 396 U.S. 865 (1969).That decision concludes that it is improper forthe government to interfere with defense effortsto obtain information, and the Section expressesconcern that Rule 3.4(f) might be read as permit-ting a prosecutor to request that governmentemployees such as investigative personnel ormedical examiners not speak to defense counsel.

I doubt that government prosecutors wouldtake the ethics rule as freeing them from suchobligations as Gregory imposes, and I would notagree that a specific black letter addition bemade to deal with the perceived problem. Fur-thermore, if any such addition were made, itshould be to Rule 3.8, which lays out specialrules applicable to prosecutors.

I suggest that the problem perceived by theSection can be remedied by adding to the Com-ment paragraph 10 the following:

Paragraph (f) does not alter any limitations,imposed upon prosecutors in criminal cases byjudicial decisions or other law, with respect toimpeding access to government employees whomay have information relevant to defendingagainst criminal charges.

If the Court wishes to deal with this problem,I recommend this solution.

Analysis of Comments Submitted to the District ofColumbia Court of Appeals in Response to theCourt’s Order of September 1, 1988 (May 3, 1989),at 66-67. The D.C. Court of Appeals did not makeany changes to the text of proposed Rule 3.4(f) orproposed comment [10] (now comment [9]) inresponse to the referenced comments.

1This opinion does not address compensation

for referrals between lawyers, which is governedby Rule 1.5(e), or payments to non-lawyers forreferring potential clients to lawyers, which aregoverned by Rules 5.4 and 7.1.

2 This committee does not opine on compliance

with legal requirements, such as those under theInvestment Advisers Act of 1940, 15 U.S.C. §§80b-1 through 80b-21 (2006), and its District ofColumbia analog, the Securities Act of 2000, D.C.Code §§ 31-5601.1 through 5608.04 (2001), asidefrom those imposed by the D.C. Rules of Profes-sional Conduct.

6 Rule 4.3 states:

(a) In dealing on behalf of a client with a personwho is not represented by counsel, a lawyershall not:

(1) give advice to the unrepresented personother than the advice to secure counsel, if theinterests of such person are or have a reason-able possiblity of being in conflict with theinterests of the lawyer’s client; or

(2) state or imply to unrepresented personswhose interests are not in conflict with theinterests of the lawyer’s client that the lawyeris disinterested.

(b) When the lawyer knows or reasonableshould know that the unrepresented person mis-understands the lawyer’s role in the matter, thelawyer shall make reasonable efforts to correctthe misunderstanding.

7We assume from the inquiry that the treating

physician is not represented by counsel and thatRule 4.2 is therefore not implicated.

may fall outside the coverage of thelawyer’s professional malpractice insur-ance.

Rules 1.7 and 1.8, which govern con-flicts of interest, and Rule 5.7, whichdeals with the provision of law-relatedservices, are relevant to this inquiry. Noreported decision of the District ofColumbia Court of Appeals or the Dis-trict of Columbia Superior Court appearsto have addressed this issue since theD.C. Rules of Professional Conduct tookeffect in January 1991.3 This committeeaddressed the issue in a 1993 opinion(Opinion No. 245) but an interveningchange in the Rules makes reconsidera-tion in order.

The 1993 inquiry was whether a com-pany offering services as a registeredagent for corporations could pay com-missions to lawyers who referred theirclients to the company. Following a briefdiscussion that cited Rule 1.7(b)(4) of theD.C. Rules and several ethics opinionsfrom this and other jurisdictions, theopinion concluded that—

a lawyer may not retain a referral fee or

commission from a third party for refer-

ring legal clients. Any payment offered

to the lawyer for referral of a client’s

business must be disclosed to the client.

The client must consent to the payment,

and the payment must be turned over to

the client directly or as a credit to the bill

for legal services. A lawyer’s judgment

in referring a client for services from

third parties must be based on assess-

ment of the quality of the third party’s

services and fairness of the price, not on

a potential financial benefit to the

lawyer.

D.C. Legal Ethics Op. 245 (1993)(“Opinion 245”). Most of the precepts setforth in the above quotation—notably,those respecting disclosure, consent, andimpairment of the lawyer’s independentprofessional judgment—apply with equalforce today. Under the current D.C.Rules, however, such a fee need not beturned over to the client if—

• the client—following full disclosure

as contemplated in Rule 1.7(c)(1)—

gives his informed consent (as con-

templated in Rules 1.7(c)(1) and

1.0(e)) to retention of the fee by the

lawyer; and

• notwithstanding the lawyer’s personal

conflict under Rule 1.7(b)(4), “the

lawyer reasonably believes that the

lawyer will be able to provide compe-

tent and diligent representation to

[the] client,” as required by Rule

1.7(c)(2); and

• the requisites of Rule 1.8(a), which

governs business transactions

between lawyer and client, are satis-

fied; and

• if Rule 5.7, which addresses the provi-

sion of “law-related services,”

applies, the requisites of that rule are

satisfied.

Rule 1.7. Rule 1.7 is the general rulerelating to conflicts of interest andwaivers of such conflicts. One type ofconflict arises when “the lawyer’s profes-sional judgment on behalf of the clientwill be or reasonably may be adverselyaffected by the lawyer’s responsibilitiesto or interests in a third party or thelawyer’s own financial, business, proper-ty, or personal interests.” D.C. Rule1.7(b)(4).

This type of conflict can be waived if(A) the client “provides informed con-sent” “after full disclosure of the exis-tence and nature of the possible conflictand the possible adverse consequences ofsuch representation” and (B) “the lawyerreasonably believes that the lawyer willbe able to provide competent and diligentrepresentation to [the] client.” Rule1.7(c).

Opinion 245 was issued in 1993. In1995, the Court of Appeals promulgatedrules revisions that included a new com-ment to Rule 1.7:4

[36] Lawyers, either alone or through

firms, may have interests in enterpris-

es that do not practice law but that, in

some or all of their work, become

involved with lawyers or their clients

either by assisting the lawyer in pro-

viding legal services or by providing

related services to the client. Exam-

ples of such enterprises are account-

ing firms, consultants, real estate

brokerages, and the like. The exis-

tence of such interests raises several

questions under [Rule 1.7]. First, a

lawyer’s recommendation, as part of

legal advice, that the client obtain the

services of an enterprise in which the

lawyer has an interest implicates para-

graph 1.7(b)(4). The lawyer should

not make a recommendation unless

able to conclude that the lawyer’s pro-

fessional judgment on behalf of the

client will not be adversely affected.

Even then, the lawyer should not

make such a recommendation without

full disclosure to the client so that the

client can make a fully informed

choice. Such disclosure should

include the nature and substance of

the lawyer’s or the firm’s interest in

the related enterprise, alternative

sources for the non-legal services in

question, and sufficient information

so that the client understands that the

related enterprise’s services are not

legal services and that the client’s

relationship to the related enterprise

will not be that of a client to attorney.

* * * Third, the lawyer should be

aware that the relationship of a related

enterprise to its own customer may

create a significant interest in the

lawyer in the continuation of that rela-

tionship. The substantiality of such an

interest may be enough to require the

lawyer to decline a proffered client

representation that would conflict

with that interest; at least Rule

1.7(b)(4) and (c) may require the

prospective client to be informed and

to give informed consent before the

representation could be undertaken.

Fourth, a lawyer’s interest in a related

enterprise that may also serve the

lawyer’s clients creates a situation in

which the lawyer must take unusual

care to fashion the relationship among

lawyer, client, and related enterprise

to assure that the [client’s] confi-

dences and secrets are properly pre-

served pursuant to Rule 1.6 to the

maximum extent possible.

D.C. Rule 1.7, cmt. [36]. Comment [36]makes clear that a lawyer’s profit-moti-vated financial or managerial involve-ment with another entity to which sherefers clients is not per se prohibited butis subject to the waiver provisions ofRule 1.7(c).

We view the instant inquiry—in whichthe other entity pays a commission to thereferring lawyer—as an example of thetype of lawyer interest described in com-ment [36] and hence as not per se prohib-ited by the Rules. Instead, anarrangement for such a referral fee orcommission is subject to the waiver pro-visions of Rule 1.7(c). To exemplify, wedo not believe the Court of Appealsintended to permit waiver for a referral toan accounting firm owned by the refer-ring lawyer but to forbid waiver, evenwith full disclosure to and informed con-

356 THE DISTRICT OF COLUMBIA BAR December 2011

3A 2007 Court of Appeals decision stated that a

lawyer referring a client to a non-lawyer entityowned by the lawyer must comply with the require-ments of Rule 1.8(a), which governs business trans-actions between lawyer and client. In re Brown,930 A.2d 249 (D.C. 2007), aff’g 2006 D.C. Super.LEXIS 5 (D.C. Super. Ct. Feb. 22, 2006) (Adm.No. 1374-03). Perforce the Rules permit a lawyerto refer a client to a non-lawyer entity in which thelawyer has less than a complete ownership interest.

4The comment originally was promulgated as

comment [25] but currently is comment [36].

sent by the client, for a referring lawyer’sreceipt of a $100 gift card from a courtreporting service.

Accordingly, Opinion 245 is overruledinsofar as it erects a per se bar to thereceipt of compensation by a lawyer forreferring her client to a non-lawyer enti-ty. We emphasize, though, that therequirements of “[d]isclosure and con-sent are not mere formalities,” D.C. Rule1.7 cmt. [27], that “the lawyer bears theburden of proof that informed consentwas secured,” id. cmt. [28], and that awaiver is ineffective unless “the lawyerreasonably believes”—i.e., the test isobjective—“that he or she will be able toprovide competent and diligent represen-tation” despite the conflict, id. cmt. [30];accord D.C. Rule 1.7(c)(2). The disclo-sure should include the fact that thelawyer stands to benefit from the refer-ral, the amount and manner5 of the bene-fit, that other providers of the servicesmight do so more capably, at a lower costor both, and that the fact of the benefitconceivably could affect the lawyer’sindependent professional judgment. SeeAriz. Ethics Op. 05-01 (2005) (requiringdisclosure of amount and manner of ben-efit); Calif. Formal Op. 1995-140 (1995)(requiring disclosure that better and lesscostly services may be available else-where). Moreover, “the form of disclo-sure sufficient for more sophisticatedbusiness clients may not be sufficient topermit less sophisticated clients to pro-vide informed consent.” D.C. Rule 1.7,cmt. [28]; accord Phila. Bar Ass’n, JointEthics Op. 2000-100 (2000). Finally, thequantum of the benefit to the lawyer is afactor in whether the lawyer reasonablycan conclude that the arrangement willnot affect adversely the lawyer’s abilityto provide competent and diligent repre-sentation. See D.C. Rule 1.7, cmt. [30](noting that “it is doubtful that a lawyercould [so conclude] where the lawyer’sindividual interests make it likely thatthe lawyer will be adversely situated tothe client with respect to the subject-matter of the legal representation”);Phila. Bar Ass’n, Joint Ethics Op. 2000-100 (2000); Utah Ethics Advisory Op.99-07 (1999) (noting difficulty, underRule 1.8, of satisfying requirement thatlawyer’s judgment not be affected);Wisc. Ethics Op. E-00-04 (2000) (statingthat disclosure requirements of Rule 1.8can be satisfied only if benefit to lawyernot unduly substantial).

The disclosures mandated in connec-tion with a request to waive a lawyer’sconflict under Rule 1.7 are not requiredto be in writing. The same is true for theclient’s informed consent. D.C. Rule1.7(c) & cmt. [28]. The comments note,however, that “[i]t is ordinarily prudentfor the lawyer to provide at least a writtensummary of the considerations disclosedand to request and receive a writteninformed consent.” D.C. Rule 1.7, cmt.[28].

Rule 1.8. The D.C. Rules impose spe-cial waiver requirements when a lawyerenters into a business transaction with aclient. The transaction must be “fair andreasonable to the client” and must befully disclosed in writing “in a mannerwhich can be reasonably understood bythe client.” D.C. Rule 1.8(a). The disclo-sure should, “[w]hen necessary, [include]the material risks of the transaction,including any risk presented by thelawyer’s involvement, and the existenceof reasonably available alternatives and,where appropriate, should explain thatthe client may wish to seek the advice ofindependent counsel. D.C. Rule 1.8, cmt.[2]. Also, the client must be accorded areasonable chance to obtain independentlegal advice and the client must giveinformed written consent to the transac-tion. D.C. Rule 1.8(a). A lawyer-clienttransaction is subject to this rule even ifunrelated to the legal representationbut—

the risk to a client is greatest when the

client expects the lawyer to represent the

client in the transaction itself or when

the lawyer’s financial interest otherwise

poses a significant risk that the lawyer’s

representation of the client will be

adversely affected by the lawyer’s finan-

cial interest in the transaction.

D.C. Rule 1.8, cmts. [1], [3]; accord N.J.Ethics Op. 688 (2000). Moreover, “[t]herule applies to lawyers engaged in thesale of goods or services related to thepractice of law, for example, the sale oftitle insurance or investment services tothe existing clients of the lawyer’s legalpractice.” Id. cmt. [1].

The D.C. Rules provide expressly thatRule 1.8(a) applies if the other entity iscontrolled by the lawyer—a criterion thatincludes the lawyer’s ability to direct theentity’s operation. D.C. Rule 5.7, cmts.[4], [5]; see In re Brown, 930 A.2d 249(D.C. 2007) (applying Rule 1.8(a) wherereal estate brokerage handling sale ofdecedent’s property was wholly ownedby lawyer for personal representative).

No published opinion of the D.C.

Court of Appeals, nor the D.C. Rules, norany of our previous opinions (includingOpinion 245) addresses whether Rule1.8(a) (or its predecessor under the D.C.Code of Professional Responsibility, Dis-ciplinary Rule 5-104(A)) applies wherethe lawyer does not control or have anownership interest in the other entity but,as here, stands to profit directly from thereferral. Most other jurisdictions thathave addressed the question, though,have concluded that Rule 1.8(a) doesapply in such circumstances. See, e.g.,Ariz. Ethics Op. 05-01 (2005) (ruleapplies; noting “heavy burden” ofdemonstrating compliance); Calif. For-mal Op. 1995-140 (1995) (rule applies);Conn. Ethics Op. 94-25 (1994) (same);Ill. State Bar Ass’n Op. 97-04 (1998)(same); Ky. Ethics Op. E-390 (1996)(rule applies but difficult to satisfyinformed consent requirement); Mich.Op. RI-317 (2000) (rule applies); N.J.Ethics Op. 688 (2000) (same); Ohio Op.2000-1 (2000) (rule applies); Phila. BarAss’n, Joint Ethics Op. 2000-100 (2000)(rule applies); Va. Legal Ethics Op. 1564(rev. 1995) (same); Utah Ethics AdvisoryOp. 99-07 (1999) (same; noting difficul-ty of satisfying requirement that lawyer’sjudgment not be affected); Wisc. EthicsOp. E-00-04 (2000) (rule applies but canbe satisfied only if benefit not undulysubstantial); see also Mo. Informal Advi-sory Op. 960124 (n.d.) (disapprovingarrangement without referring to rule onbusiness transactions with clients); N.Y.State Bar Ass’n Op. 682 (1996) (same);Vt. Advisory Ethics Op. 1998-08 (1998)(same).

Although numerous, these opinionsoffer little in the way of reasoning. Wethink that a somewhat more nuancedapproach is in order. Rule 1.8(a) applieswhere there is a “business transaction”between lawyer and client. Where thelawyer has an ownership interest or man-agement role in the other entity, such atransaction is present and the lawyeraccordingly must comply with Rule1.8(a) as well as with Rule 1.7(c). Wherethe lawyer has no such interest or role inthe other entity, however, there is no“business transaction” between thelawyer and her client even if the lawyer isto receive a commission or similar bene-fit from the other entity. In that circum-stance, Rule 1.7(c) applies but Rule1.8(a) does not.

The waiver requirements under D.C.Rule 1.8(a) are outlined above. Lawyerspreparing disclosures contemplated bythis rule also may wish to take note of thefollowing opinions from other jurisdic-

December 2011 THE DISTRICT OF COLUMBIA BAR 357

5By “manner,” we include whether the fee is a

one-time or recurring payment. See, e.g., Phila, BarAss’n, Joint Ethics Op. 2000-100 (2000) (requiringthat the client be advised of this fact).

tions. The Illinois ethics opinion citedabove states that full disclosure shouldinclude “informing the client . . . that thelawyer would not be involved in any wayto protect the client’s interest but wouldcontinue to receive a portion of the advi-sor’s fee.” Ill. Advisory Op. 97-04(1998). Michigan cautions that where thelawyer has an ongoing, as opposed to aone-time, interest in the fees paid to theadvisory firm, disclosure “should include. . . that the lawyer cannot render legaladvice to the client if disputes or differ-ences arise between the advisory firmand the client.” Mich. Op, RI-317(2000). Wisconsin advises the lawyer todisclose “such factors as relative cost;suitability to the client’s needs; and thecompetence, character, and reputation ofthe person to whom the lawyer refers theclient.” Wisc. Ethics Op. E-00-04 (2000).

Rule 5.7. The D.C. Rules expresslyaddress the responsibilities of a lawyerwhen “law-related services” are providedby an entity “controlled by the lawyerindividually or with others” in circum-stances that are distinct from the lawyer’sprovision of legal services to her client.D.C. Rule 5.7(a)(2). “Law-related ser-vices” are those “that might reasonablybe performed in conjunction with and insubstance are related to the provision oflegal services, and that are not prohibitedas unauthorized practice of law whenprovided by a nonlawyer.” D.C. Rule5.7(b). Examples include “providing titleinsurance, financial planning, account-ing, trust services, real estate counseling,legislative lobbying, economic analysis,social work, psychological counseling,tax preparation, and patent, medical orenvironmental consulting.” Rule 5.7,cmt. [9].

The facts before us are insufficient todetermine whether this rule, which wasadded in February 2007, applies to theinstant inquiry. For example, the ruledoes not apply if the lawyer lacks “theability to direct [the] operation” of thenon-lawyer entity to which she refersher client, Rule 5.7, cmt. [4], nor does itapply if the services provided by thenon-lawyer entity are unrelated to theprovision of legal services. The inquirydoes not indicate whether the lawyer hasa controlling, ownership, or manage-ment interest in the non-lawyer entity,nor does it indicate the relationship, ifany, between the services being provid-ed by the lawyer and those to be provid-ed by the non-lawyer entity. As to thelatter criterion, it is one thing if thelawyer is defending the client against areckless driving charge and the referral

is to an entity that would manage theassets of the client’s business, but quiteanother if the lawyer represents theclient in an inheritance matter and thereferral is to an entity that would man-age the inherited assets.

If Rule 5.7 does apply, however, thelawyer will be subject to the Rules ofProfessional Conduct in respect of theservices provided by the non-lawyerentity unless the lawyer takes “reason-able measures to assure that [the client]knows that the services are not legalservices and that the protections of theclient-lawyer relationship do not exist.”Rule 5.7(a)(2). The communicationshould be made before the client entersinto an agreement for the law-relatedservices, Rule 5.7 cmt. [6], and the bur-den is on the lawyer to show compli-ance with the notification requirement,id. cmt. [7].

Malpractice coverage. Although wedo not opine on legal questions arisingother than under the Rules of Profession-al Conduct, we offer a final caveat:Compliance with the D.C. Rules aside, a“business enterprise exclusion” is a stan-dard feature of lawyers’ professional lia-bility insurance policies, AmericanGuarantee & Liab. Ins. Co. v. Timothy S.Keiter, P.A., 360 F.3d 13, 16 (1st Cir.2004), and courts have interpreted thisexclusion broadly, e.g., MinnesotaLawyers Mut. Ins. Co. v. Antonelli, Terry,Stout & Kraus, LLP, 2010 U.S. Dist.LEXIS 122836, *28 (E.D. Va. Nov. 18,2010) (Civil No. 1:08-CV-1020) (hold-ing that exclusion extends not only toclaims “arising from” lawyer’s otherbusiness but also claims “relating to”such business). One purpose of theexclusion is “to avoid the circumstancewhere an insured so intermingles hisbusiness relationships with his law prac-tice that an insurance carrier incurs addi-tional risk of having to cover the insuredfor legal malpractice claims relating tothe conduct of business, rather than sole-ly out of the professional practice.” Id. at17 (quoting Jeffer v Nat’l Union Fire Ins.Co. of Pittsburgh, Pa., 703 A.2d 316,322 (N.J. Super. 1997).) One applicationof the exclusion is where a lawyer has aninterest in a business that becomesinvolved in the services the lawyer isproviding to her client. E.g., DarwinNat’l Assurance Co. v. Hellyer, 2011U.S. Dist. LEXIS 60592 (N.D. Ill. June7, 2011) (No. 10 C 50224). “[T]he[insurance] policy makes it clear that itwill not extend coverage to an insuredsued for professional malpractice out-side of legal matters conducted between

the firm and its clients.” Jeffer, 703 A.2dat 322. The upshot is that even wherethe D.C. Rules permit a lawyer to accepta commission from the non-lawyer enti-ty to which she refers a client, thelawyer’s malpractice insurance mightnot cover a claim that relates to thereferral or to the services rendered bythe other entity, particularly where thelawyer has a financial interest involvingthe other entity. Ill. Advisory Op. 97-04(1998).6

Conclusion

If the criteria of Rule 1.7(c) and, ifapplicable, Rules 1.8(a) and 5.7 are satis-fied, a lawyer who refers a client to anon-lawyer service provider such as afinancial services firm7 may accept com-pensation from the provider for such areferral. The prerequisites for such anarrangement are exacting, however, andthe arrangement may be outside the cov-erage of the lawyer’s professional mal-practice insurance even if permitted bythe Rules.

Published November, 2011

Opinion No. 362

Non-lawyer Ownership of Discovery

Service Vendors

Summary

Discovery service vendors, such as e-discovery vendors, cannot both practicelaw within the District of Columbia andbe partially or entirely owned by passivenon-lawyer investors consistent withD.C.Rule 5.4(b). This Committee’s jurisdic-tion does not include the definition of thepractice of law, but the Committee onUnauthorized Practice of Law has recent-ly issued a detailed opinion explainingwhat activities by these vendors consti-tute the practice of law.

The Rules of Professional Conduct donot reach non-lawyer owners of discov-ery service organizations; they are not

358 THE DISTRICT OF COLUMBIA BAR June 2012

6 We do not mean to suggest that the simple act

of referring a client to a non-lawyer serviceprovider, where the lawyer receives no economicbenefit from the referral, is beyond the scope ofstandard legal malpractice coverage.

7As noted above, this opinion does not address

compensation for referrals between lawyers, whichis governed by Rule 1.5(e), or payments to non-lawyers for referring potential clients to lawyers,which are governed by Rules 5.4 and 7.1.

subject to bar discipline. The Rules doreach lawyers who co-own or managesuch vendors with or on behalf of non-lawyer passive investors. The Rules alsocould reach lawyer employees of suchvendors who know of facts that constitutea violation of Rule 5.4(b) or lawyerswho, with similar knowledge, retain suchvendors.

In addition, lawyers who own, man-age, work for or retain a discovery ser-vice vendor that engages in the practiceof law in the District of Columbia and haspassive non-lawyer investment may vio-late the prohibition in Rule 5.5(b) againstassisting others in the unauthorized prac-tice of law.

Applicable Rules

• Rule 5.2—Subordinate Lawyers• Rule 5.4(b)—Professional Inde-

pendence of a Lawyer• Rule 5.5(b)—Unauthorized Practice• Rule 5.7—Law Related Services• Rule 8.4(a)—Misconduct

Inquiry

Discovery service vendors havebecome an increasingly important part ofthe legal marketplace. They can providean efficient and effective way for clientsand lawyers to handle the complex andexpensive process of discovery (electron-ic and otherwise), providing technicalexpertise, facilities and trained personnelat rates that often are less than thosecharged by lawyers and law firms forsimilar services. When such organiza-tions operate in conformity with the ethi-cal mandates discussed herein, they maypresent a viable alternative to traditionalmarketplace offerings.

The Committee has received aninquiry from a lawyer familiar with theservices provided by discovery servicevendors to lawyers and clients. Theinquirer states that these vendors providetemporary attorneys, manage the servicesof software providers, and supervise thereview and production of documents intheir own review centers. The inquirerasserts that some such vendors are ownedand operated entirely by attorneys, othersare partly owned by attorneys, and theremainder are owned and controlled bycorporations and other non-attorneys.The inquirer asks whether these vendorsare operating consistent with Rule 5.4’sprohibition on passive investment in lawfirms. Although the inquirer did not raiseRule 5.5’s prohibition on engaging orassisting in the unauthorized practice oflaw or Rule 5.7’s discussion of the provi-

sion by lawyers of law related services,we consider those issues as well.

Discussion

The threshold question is whether the dis-covery service vendors are, in fact, engagedin the practice of law. The practice of law isnot defined in the District of ColumbiaRules of Professional Conduct. See Com-ment [2] to Rule 5.5 (“The definition of thepractice of law is established by law andvaries from one jurisdiction to another.”).

A. The UPL Committee’s Opinion

Addressing Discovery Service Vendors

District of Columbia Court of AppealsRule 49 (“Rule 49”) governs who maypractice law within the District ofColumbia. The District of ColumbiaCommittee on Unauthorized Practice ofLaw (the “UPL Committee”) has recent-ly examined when e-discovery compa-nies or discovery service vendors areengaged in the practice of law in the Dis-trict of Columbia and therefore subject toRule 49. We accept, as we must, the con-clusions of the UPL Committee and itsOpinion, described in more detail below.

In its Opinion 21-12, issued January12, 2012, the UPL Committee reviewedthe activities of discovery service ven-dors.1 It noted that “some companies offernot only attorneys to staff documentreview projects, but also offer the physi-cal space where the document review willtake place, computers for conducting thereview, and servers for hosting the docu-ments to be reviewed.” Op. 21-12 at 4.Additionally, some vendors offer otherservices ranging from “e-discovery con-sulting to database management to theeventual production of documents.” Id.Some vendors describe their services as“‘one-stop shopping, comprehensivereview and project management, [and]fully managed document review.’” Id.(also noting descriptions of “soup-to-nutsdocument project from process to produc-tion” and “comprehensive project plan-ning, on-site review team supervision,privilege log preparation, e-vendor selec-tion and more”). Finally, some vendorsalso tout the qualifications of the lawyersthey employ (e.g., describing them as“seasoned litigators”), or promote thevendor’s expertise in various areas of thelaw such as intellectual property, patentlitigation, class action lawsuits, and merg-ers and acquisitions. Id. at 5.

Opinion 21-12 provides guidance toallow discovery service companies topromote and provide services withoutfalling afoul of Rule 49. First, the UPLCommittee concluded that Rule 49 cov-ers discovery service companies that arelocated in, use an address in, or otherwiseconduct activities in the District ofColumbia. In addition, Rule 49 coversthose entities that “advertise themselvesas available to assist with discovery proj-ects in the District.” Id. at 7.

Second, the UPL Committee, reiterat-ing prior guidance from its Opinion 6-99,concluded that discovery service compa-nies could handle “the administrativeaspects of hiring and supervising a docu-ment review attorney” without violatingRule 49.2 However, “the final selection ofattorneys to staff a document review proj-ect must be made by a member of theD.C. Bar with an attorney-client relation-ship [and] the attorney’s legal work mustbe directed or supervised by a D.C. Barmember who represents the client.” Id. at8. The “discovery services company maynot . . . attempt to supervise the documentreview attorney[‘s legal work].” Id.

Third, the UPL Committee stated that“[t]o avoid running afoul of the holdingout prohibition, discovery services com-panies must avoid” terms such as “docu-ment review” or “the discovery process”or other broad statements, such as “soup-to-nuts” or “end-to-end” services, imply-ing that “a company can manage theentire document review or discoveryprocess.” Id. at 9. The UPL Committeealso stated that any vendor making “suchbroad statements . . . at a minimum mustinclude a prominent disclaimer statingthat the company is not authorized topractice law or provide legal services inthe District of Columbia and that the ser-vices offered by the company are limitedto the non-legal, administrative aspects ofdocument review and discovery proj-ects.” Id. Statements about the legalexpertise of staff must be accompaniedby a similar disclaimer. Id.

B. Rule 5.4: Non-Lawyer Ownership

and Discovery Service Companies.

Rule 5.4(b) permits non-lawyer own-ership of law firms under certain condi-tions. The entity in which the interest is

June 2012 THE DISTRICT OF COLUMBIA BAR 359

1The full text of the UPL Committee’s opinion

can be found at http://www.dccourts.gov/internet/appellate/unauthcommittee/main_jsf.

2The administrative matters “could include

interviewing individuals to create roster of attor-neys available...providing the lawyer’s workingspace and equipment, ensuring that he or she worksa regular day and works at an acceptable pace, pro-viding salary and benefits, and similar supervisoryactivities that do not require the application of pro-fessional legal judgment.” Id. at 8.

held by the non-lawyer must have “as itssole purpose” the provision of legal ser-vices. Rule 5.4(b)(1). The non-lawyerowners must undertake to abide by theRules of Professional Conduct. Rule5.4(b)(2). The lawyers in the organizationmust accept supervisory authority overthe non-lawyer as provided by Rule 5.1.Rule 5.4(b)(3). All of these conditionsmust be set forth in writing. Rule5.4(b)(4).

Rule 5.4(b) does not allow for passiveinvestment in law firms or the like by “acorporation, investment banking firm, aninvestor or any other person or entity”that seeks to “entitle itself to all or anyportion of the income or profits of a lawfirm or similar organization.” Comment[8] to Rule 5.4. To hold an interest in alaw firm, a non-lawyer must be “an indi-vidual performing professional serviceswithin the law firm or other organiza-tion.” Id.; see also Rule 5.4(b) (limitingnon-lawyers who may own an interest ina law firm to those “who perform[] pro-fessional services which assist the organ-ization in providing legal services toclients”).

As stated above, we are bound by theconclusions stated in the UPL Commit-tee’s Opinion 21-12 regarding those activ-ities that do or do not constitute thepractice of law. To the extent that discov-ery service vendors observe the limits ontheir work and related promotional activi-ties set forth in that opinion, such vendorsare not practicing law and the provisionsof Rule 5.4(b) therefore do not apply.3 Tothe extent, however, that the discoveryservice organization is, in fact, engaged inthe practice of law as set forth in Opinion21-12, passive ownership of that organi-zation violates Rule 5.4(b).4 Of course,the Rules of Professional Conduct onlyreach the conduct of lawyers, not corpora-tions or non-lawyer investors. As a result,D.C. Bar admitted lawyers may not prac-tice law within the District of Columbia

or hold themselves out as able to do so fordiscovery service organizations whensuch organizations have passive non-lawyer investors. Under such circum-stances, a D.C. Bar admitted lawyercannot, consistent with Rule 5.4(b), shareownership in or participate in the man-agement of a discovery service organiza-tion with non-lawyer passive investors.5

We do not find a basis to conclude thatlawyer employees of a discovery serviceorganization, whose sole or principalfunction is document review, have a dutyto investigate how the organization pro-motes itself or whether the organizationhas passive non-lawyer ownership.However, where such a lawyer employeeknows that the discovery service organi-zation is (a) practicing law within theDistrict of Columbia or holding itself outas prepared to do so and (b) owned, inwhole or in part, by non-lawyer passiveinvestors, such lawyer’s continued workfor that entity may be inconsistent withRule 5.4(b). See also Rule 8.4(a) (“It isprofessional misconduct for a lawyer toviolate or attempt to violate the Rules ofProfessional Conduct, knowingly assistor induce another to do so, or do sothrough the acts of another.”) (emphasisadded). Under the Rules, the term knows“denotes actual knowledge of the fact inquestion.” The definition also states,however, that “[a] person’s knowledgemay be inferred from the circumstances.”Rule 1.0(f).

Note, however, that whether an entity,either in a particular matter or generally,is practicing law is an issue that oftenmay be unclear. Under Rule 5.2(b), sub-ordinate lawyers do not violate the Rulesof Professional Conduct when they “act[]in accordance with a supervisorylawyer’s reasonable resolution of anarguable question of professional duty.”6

“Although a lawyer is not relieved ofresponsibility for a violation by the factthat the lawyer acted at the direction of asupervisor, that fact may be relevant indetermining whether a lawyer had theknowledge required to render conduct aviolation of the Rules.” Comment [1] toRule 5.2.

As we stated in Opinion 358, Rule 5.2“protects a subordinate lawyer who actsat the direction of a supervising attorneyso long as there is a reasonable argumentthat” the actions at issue are “permittedby the Rules.”7 In this regard, it may beprudent for the management of a discov-ery services organization to explain to itsemployees, preferably in writing, how itsoperations are consistent with the restric-tions on the practice of law by non-lawyers and on the prohibition of passivenon-lawyer ownership of entities that dopractice law. Such a statement, whenissued in good faith by a supervisorylawyer, can fulfill the requirements of thesafe harbor described in Rule 5.2(b). Ofcourse, if the subordinate lawyer knowsthat the statement issued by the discoveryorganization is or has become materiallyinaccurate, such lawyer may no longercome within the safe harbor of Rule5.2(b).

Finally, a lawyer who is contracting fordiscovery services on behalf of a clientcan similarly risk falling afoul of Rule5.4(b) if the lawyer knows that the dis-covery services organization has passivenon-lawyer ownership. See Rule 8.4(a)(prohibiting a lawyer from “knowinglyassist[ing] or induc[ing]” another lawyerto violate the Rules). A D.C. Bar admittedlawyer who retains a discovery organiza-tion with passive non-lawyer ownershipand abdicates to that organization respon-sibilities that include the practice of law,without appropriate supervision or over-sight, violates Rule 5.4(b). For example,a lawyer who simply gives a group ofdocuments and a discovery request to adiscovery service vendor and asks thevendor to select and organize responsivedocuments, produce a privilege log, and

360 THE DISTRICT OF COLUMBIA BAR June 2012

3If a lawyer is involved in the provision of dis-

covery services that do not constitute the practiceof law, the lawyer may still be required to complywith the provisions of Rule 5.7. Discovery servicesthat are not legal services are likely “law relatedservices” under Rule 5.7. As a result, a lawyer pro-viding such services would be subject to the Rulesof Professional Conduct with respect to such ser-vices unless the lawyer took steps to inform theperson or entity obtaining the law related servicesthat the “protections of the client-lawyer relation-ship do not exist.” See Rule 5.7(a)(2).

4A discovery services organization could prac-

tice law and still have a non-lawyer owner if suchowner were an active participant in the businessand made the certifications required by Rule5.4(b)(4).

5A recent opinion of the New York State Bar

Association concluded that New York’s version ofRule 5.4 prohibits New York-admitted lawyersfrom practicing law in New York as employees of aUnited Kingdom entity that included non-lawyersin supervisory and ownership positions. NYSBAEthics Opinion 911 (March 2012). Although NewYork’s version of Rule 5.4 differs from that of theDistrict of Columbia, and does not permit non-lawyerownership of any kind, the New York opinion never-theless supports our broader conclusion that a lawyercannot practice law with an entity that is constitutedin a manner not authorized by Rule 5.4.

6 Rule 5.2 states in full:

“(a) A lawyer is bound by the Rules of Profes-sional Conduct notwithstanding that the lawyeracted at the direction of another person.

(b) A subordinate lawyer does not violate theRules of Professional Conduct if that lawyer acts inaccordance with a supervisory lawyer’s resolutionof an arguable question of professional duty.”

7 D.C. Legal Ethics Opinion 358 (2011); See

also Comment [2] to Scope Note (“The Rules pre-suppose that disciplinary assessment of a lawyer’sconduct will be made on the basis of facts and cir-cumstances as they existed at the time of conduct inquestion and in recognition of the fact that a lawyeroften has to act upon uncertain or incomplete evi-dence of the situation. Moreover, the Rules presup-poses that whether or not discipline should beimposed for a violation, and the severity of thesanction, depend on all of the circumstances, suchas willfulness and seriousness of the violation,extenuating factors and whether there have beenprevious violations.”)

prepare the response to the request itselfmay put the discovery service organiza-tion in the position of practicing lawunder Opinion 21-12. Under such cir-cumstances, instead of the broad delega-tion of work and responsibility describedabove, the lawyer hiring the discoveryservice vendor should ensure that the ser-vices being provided for that lawyer willnot extend to the practice of law as out-lined in Opinion 21-12. That is, thelawyer seeking to retain a discovery ser-vices organization should satisfy herselfthat the organization will not be engagedin the practice of law with respect to thematter for which the lawyer seeks to hirethe organization. Alternatively, a lawyerseeking legal services from a discoveryservices organization could assure herselfthat such organization either is ownedand controlled solely by lawyers or doesnot engage in the practice of law.

C. Rule 5.5: Discovery Services

Organizations and Unauthorized

Practice of Law

Rule 5.5(a) prohibits a lawyer from“practicing law in a jurisdiction wheredoing so violates the regulation of thelegal profession in that jurisdiction.”Rule 5.5(b) prohibits assistance to a “per-son who is not a member of the Bar in theperformance of activity that constitutesthe unauthorized practice of law.” Com-ment [1] to Rule 5.5 indicates that theseprohibitions “concern[] the unauthorizedpractice of law by District of ColumbiaBar members in other jurisdictions andassistance by District of Columbia Barmembers in the unauthorized practice oflaw by lawyers not admitted in this juris-diction or by non-lawyers.”

A lawyer who works for, partiallyowns, or engages a discovery serviceorganization with passive non-lawyerownership may be assisting another “per-son” or “non-lawyer” in the unauthorizedpractice of law. Although “person” is notdefined in the Rules, Rule 49 defines theterm to include entities. See D.C. Ct.App. Rule 49(a) (1). Moreover, Rules 4.1through 4.4 use the term “person” or“third person” in ways that include enti-ties as well as individuals. For example,it would be anomalous to conclude thatRule 4.4(a)’s prohibition on the use of“means that have no substantial purposeother than to embarrass, delay or burdena third person,” applies only to individu-als. The same logic applies to the provi-sions of Rule 4.3.8 See generally D.C.

Code § 45-604 (“The word ‘person’ shallbe held to apply to partnerships and cor-porations unless such construction wouldbe unreasonable....”)

Conclusion

If discovery service organizations fol-low the guidelines set forth in the UPLCommittee Opinion 21-12 and do notpractice law, the activities of such organ-izations and the lawyers who work forthem are consistent with the restrictionson non-lawyer ownership stated in Rule5.4(b). However, the combination of thepractice of law in the District of Colum-bia and passive non-lawyer ownership isnot consistent with Rule 5.4(b). The non-compliance with the limitations on enti-ties owned in part by non-lawyers shouldbe particularly evident to those lawyerswho create, own, and manage suchorganizations in conjunction with passiveinvestors, but also may be evident tothose lawyers who work at such organi-zations or the lawyers who engage suchorganizations. Lawyers in any of thesecircumstances should understand howRule 5.4(b)’s requirements, and Opinion21-12’s definition of the practice of lawmay affect their ability to own, manage,work for, or retain such an entity. Finally,a lawyer who partially owns a discoveryservice vendor with passive non-lawyerownership engaged in the practice of lawin the District of Columbia assists in theunauthorized practice of law in violationof Rule 5.5(b). Lawyers who knowinglywork for or retain such an entity may alsoviolate Rule 5.5(b).

Published June 2012

Opinion No. 363

In-House Lawyer’s Disclosure or Use

of Employer/Client’s Confidences or

Secrets in Claim Against

Employer/Client for Employment Dis-

crimination or Retaliatory Discharge

An in-house lawyer may not discloseor use her employer/client’s confidencesor secrets in support of the lawyer’s claimagainst the employer/client for employ-ment discrimination or retaliatory dis-charge unless expressly authorized by

Rule 1.6. If the employer/client puts thelawyer’s conduct in issue, however (e.g.,by lodging an affirmative defense or acounterclaim), the lawyer may discloseor use the employer’s confidences orsecrets insofar as reasonably necessary torespond to the employer/client’s con-tention. An in-house lawyer is not pro-hibited from bringing such a claimagainst her employer/client merelybecause the employer/client may find itnecessary or helpful to disclose its confi-dences or secrets in defending against thelawyer’s claim.

Applicable Rule

• Rule 1.6 (Confidentiality of Infor-mation

Inquiry

The committee has been askedwhether an in-house lawyer may discloseor use her employer/client’s confidencesor secrets in a claim against the employ-er/client for employment discriminationor retaliatory discharge. The inquirer alsoasks whether an employer/client’s per-ceived need to use its confidences orsecrets in defending against such a claimlimits the in-house lawyer’s right to bringthe claim.

Discussion

Claim by in-house lawyer

As a general matter, an employee inthe District of Columbia may pursue aclaim against her employer for prohibiteddiscrimination, see, e.g., 42 U.S.C. §2000e—2000e-17 (2006) (Title VII of1964 Civil Rights Act); D.C. Code § 2-1401.1—2-1404.04 (2001) (DC HumanRights Act), or retaliatory discharge, Carlv. Children’s Hospital, 702 A.2d 159(D.C. 1997) (en banc); Liberatore v.Melville Corp., 168 F.3d 1326 (D.C. Cir.1999).1 We know of no District ofColumbia decisions on whether such acause of action is available to an in-housecounsel2 but assume arguendo that such alawyer possesses such a right. Weaddress here whether the D.C. Rules ofProfessional Conduct (“D.C. Rules”)

October 2012 THE DISTRICT OF COLUMBIA BAR 361

8Rules 4.1 and 4.2 specifically define “person”

or “third person” to include entities. See Comment

[1] to Rule 4.1 and Rule 4.2(c). The failure torepeat a similar definition in Rules 4.3, 4.4, and 5.5does not appear to have been by design or other-wise to have been intended to distinguish the mean-ing of the term as between different Rules.

1This committee does not opine on laws or reg-

ulations aside from the D.C. Rules of ProfessionalConduct (“D.C. Rules”). It may discuss such law,however, where appropriate to put its opinions incontext.

2See Wallace v. Skadden, Arps, Slate, Meagher

& Flom, 715 A.2d 873, 883-86 (D.C. 1998)(assuming that retaliatory discharge of lawyer bylaw firm can give rise to cause of action againstfirm).

prohibit an in-house counsel from dis-closing or using the employer/client’sconfidences or secrets in furtherance ofsuch a claim.3

With certain exceptions, a D.C. Barmember may not knowingly reveal, oruse to the lawyer’s advantage or theclient’s disadvantage, a “confidence orsecret” of the lawyer’s client. D.C. Rule1.6(a). In this context, “confidences” areinformation protected by the attorney-client privilege, while “secrets” are“other information gained in the profes-sional relationship that the client hasrequested be held inviolate, or the disclo-sure of which would be embarrassing, orwould be likely to be detrimental, to theclient.” D.C. Rule 1.6(b). “Secrets”include information gained from thirdparties that otherwise comes within thisdefinition. D.C. Rule 1.6 cmt. [8]. Theprohibitions of Rule 1.6 continue aftertermination of the lawyer-client relation-ship. D.C. Rule 1.6(g).

A lawyer may reveal or use client con-fidences or secrets in some circum-stances. Among these is—

to the extent reasonably necessary to

establish a defense to a criminal charge,

disciplinary charge, or civil claim, for-

mally instituted against the lawyer,

based upon conduct in which the client

was involved, or to the extent reason-

ably necessary to respond to specific

allegations by the client concerning the

lawyer’s representation of the client.

D.C. Rule 1.6(e)(3) (emphasis added).Read literally, this provision is limited todefensive use of client information. Itdoes not authorize offensive use of clientconfidences or secrets by the lawyer inthe context of a lawyer-client controver-sy. Another exception in Rule 1.6 permitsa lawyer to use or reveal such informa-tion offensively, but only “to the mini-mum extent necessary in an actioninstituted by the lawyer to establish orcollect the lawyer’s fee.” D.C. Rule1.6(e)(5) (emphasis added).

The former D.C. Code of ProfessionalResponsibility (“D.C. Code”) took a sim-ilar approach, permitting a lawyer to dis-close a client’s confidences or secretswhere “necessary to establish or collecthis fee or to defend himself . . . against anaccusation of wrongful conduct.” D.C.

Code, Disciplinary Rule 4-101(C)(4)(emphasis added).

The history of D.C. Rule 1.6(e)(3) fur-ther demonstrates its availability solelyfor defensive purposes. The AmericanBar Association’s Model Rules of Profes-sional Conduct (“Model Rules”) wereadopted in 1983. As their name implies,the Model Rules are recommendations.General Dynamics Corp. v. SuperiorCourt , 876 P.2d 487, 503 n. 6 (Calif.1994). They have the force of law in agiven jurisdiction only if adopted by thatjurisdiction’s bar governance authority—typically the highest court.

The District of Columbia Court ofAppeals (“Court of Appeals”) has disci-plinary and regulatory authority over theD.C. Bar. D.C. Code § 11-2501 (2001).Soon after the ABA promulgated theModel Rules, the D.C. Bar, with theapproval of the Court of Appeals, estab-lished a special committee, the ModelRules of Professional Conduct Commit-tee (“Jordan Committee”), to review theModel Rules and make suitable recom-mendations to the D.C. Bar Board ofGovernors.

In contrast to the D.C. Rules, theModel Rules permit a lawyer, in a con-troversy with her client, to reveal infor-mation relating to representationoffensively as well as defensively—

to establish a claim or defense on behalf

of the lawyer in a controversy between

the lawyer and the client, to establish a

defense to a criminal charge or civil

claim against the lawyer based upon

conduct in which the client was

involved, or to respond to allegations in

any proceeding concerning the lawyer’s

representation of the client.

Model Rule 1.6(b)(5) (emphasisadded); ABA Formal Op. 01-424 (Sept.22, 2001) (approving offensive use ofinformation in in-house lawyer’s actionagainst client/employer for wrongful dis-charge).4 Unlike the D.C. Rules, see D.C.Rule 1.6(e)(5), the Model Rules do not

expressly authorize disclosure in anaction for a lawyer’s fee. Such an actionis subsumed, however, within the firstclause of Model Rule 1.6(b)(5).

The Jordan Committee discussedModel Rule 1.6(b)(5) on several occa-sions. The issue as framed by the com-mittee, though, was not whether to permitgeneralized use of client confidences andsecrets in lawyers’ claims against clientsbut whether even to permit suits to col-lect fees.5 The Jordan Committee’s min-utes reflect the removal of the first clauseof the model rule provision quoted abovebut aside from the discussion on whethersuits for fees should be permitted, do notreflect the reasoning behind theremoval.6

The Bar Board of Governors transmit-ted its recommendations to the D.C.Court of Appeals in November 1986.Proposed Rules of Professional Conductand Related Comments, Showing theLanguage Proposed by the American BarAssociation, Changes Recommended bythe District of Columbia Rules of Profes-sional Conduct Committee, and ChangesRecommended by the Board of Gover-nors of the District of Columbia Bar(Nov. 19, 1986) (“Yellow Book”). TheYellow Book discussed various elementsof what now are D.C. Rules 1.6(e)(3) and1.6(e)(5) but did not explain the reasonsfor retaining the D.C. Code approach oflimiting a lawyer’s offensive use of clientconfidences and secrets to fee collectionactions.

In March 1990, the Court of Appealsadopted what now are D.C. Rules1.6(e)(3) and 1.6(e)(5), as proposed bythe Board of Governors.7 SubsequentD.C. Bar reviews of the D.C. Rules in theearly 1990s and in 2001-05 did not rec-ommend changes,8 and the two provi-sions remain in force as originallyadopted. As noted above, we are unawareof any relevant D.C. judicial decisions—either on the issue presented by theinquiry or on whether any particular

362 THE DISTRICT OF COLUMBIA BAR October 2012

3Two D.C. Court of Appeals decisions involv-

ing lawyers’ actions against their former law firmsfor retaliatory discharge do not address disclosureof confidences or secrets of the law firms or thefirms’ clients. Umana v. Swidler & Berlin, Char-tered, 745 A.2d 334 (D.C. 2000); Wallace, 715A.2d 873.

4The former ABA Model Code of Professional

Responsibility, like the former D.C. Code, limitedpermissible revelations to those necessary to collecta lawyer’s fee. Spratley v. State Farm Mut. Auto-mobile Ins. Co., 78 P.3d 603, 608 (Utah 2003) (cit-ing ABA Annotated Model Rules of ProfessionalConduct 68 (5th ed. 2003)). By comparison, theModel Rule “‘enlarges the [Model Code] exceptionto include disclosure of information relating toclaims by the lawyer other than for the lawyer’sfee; for example, recovery of property from theclient.’” Id. (quoting ABA Annotated Model Rulesof Professional Conduct 68 (5th ed. 2003) (empha-sis in original); accord Burkhart v. Semitool, Inc., 5P.3d 1031, 1041 (Mont. 2000).

5Jordan Committee Minutes (July 10, 1984;

Nov. 17, 1984).

6Id. (As noted herein, the former D.C. Code

permitted only defensive use of such informationexcept in the fee collection context).

7The rules took effect January 1, 1991.

8E.g., D.C. Bar Rules of Professional Conduct

Review Committee, Proposed Amendments to theDistrict of Columbia Rules of Professional Con-duct, Report and Recommendations 30 (Jan. 31,2005) (“The Committee . . . saw no compelling pol-icy reasons to change any of the disclosure optionscurrently included in [Rule 1.6]”).

cause of action might overcome or pre-empt the prohibitions of D.C. Rule1.6(a).

Thus, the legislative and judicial histo-ry of the provisions is consistent withtheir text. Taken together, these guide-posts compel the conclusion that an in-house lawyer may not reveal or useemployer/client secrets or confidencesoffensively in making a claim foremployment discrimination or retaliatorydischarge—unless, of course, such dis-closures are authorized by another excep-tion to D.C. Rule 1.6 (e.g., thecrime/fraud exceptions in subsection(d)).

Employer/client’s defense against in-

house lawyer’s claim

On the second branch of the inquiry,we see nothing in the D.C. Rules thatwould limit an in-house lawyer’s right tobring a discrimination or retaliation claimagainst her employer/client because thatdefendant might perceive a need to revealits secrets or confidences in order todefend against the claim. As many deci-sions have noted, courts do not lack toolsto protect such information from inordi-nate disclosure.9

Moreover, if the employer/client callsthe lawyer’s conduct into question in thecontext of such a lawsuit, the lawyer maydisclose the employer/client’s confi-dences and secrets as a defensive mat-ter—but only “to the extent reasonablynecessary” to respond to theemployer/client’s allegations. D.C. Rule1.6(e)(3).

Conclusions

A D.C. Bar member may not reveal oruse the confidences or secrets of heremployer/client in connection with thelawyer’s offensive lawsuit against thatclient, other than in an action for thelawyer’s fee10 and then only “to the min-imum extent necessary.” D.C. Rules1.6(e)(3), 1.6(e)(5).

We express no opinion on whetherthere may be instances where a statute or

case law dealing with employment dis-crimination or retaliatory discharge over-comes the prohibitions of D.C. Rule1.6(a).11 The D.C. Rule, however, doesnot provide for such preemption withinits four corners and the District ofColumbia courts have yet to rule on theissue.12

A lawyer may disclose such informa-tion defensively, however, “to the extentreasonably necessary” to respond to spe-cific allegations by the client or to defendagainst a civil claim. D.C. Rule 1.6(e)(3).The former context could includeresponding to affirmative defenses to adiscrimination or retaliatory dischargeaction; the latter could include respond-ing to a client counterclaim in such a law-suit.13 D.C. Rule 1.6 cmt. [25].Moreover, other exceptions in Rule 1.6,such as the crime-fraud exceptions ofsubsection (d), might be available inappropriate instances. Nothing in the

D.C. Rules limits an in-house lawyer’sright to bring such a claim because theclient/employer might perceive a need toreveal its secrets or confidences in orderto defend against the claim.

We are mindful of the important publicpolicy that encourages redress in cases ofemployment discrimination and retaliato-ry discharge. We note, however, that thiscommittee’s jurisdiction is limited tointerpreting the D.C. Rules—which arepromulgated by the Court of Appeals—aswe find them. Whether Rule 1.6(e)(3) isovercome in such a case or, if not, shouldbe revised to permit a lawyer to reveal oruse employer/client confidences orsecrets offensively in such a case, neces-sarily remains a matter for the courts.

Published October 2012

Opinion No. 364

Confidentiality Obligations When

Former Client Makes Ineffective

Assistance of Counsel Claim

When a former client challenges a crim-inal conviction or sentence on the groundsof ineffective assistance of counsel(“IAC”), D.C. Rule 1.6(e)(3) permits thelawyer to disclose client confidences andsecrets only insofar as reasonably neces-sary to respond to the client’s specific alle-gations about the lawyer’s representation.Where appropriate, the lawyer should takesteps, such as seeking a judicial protectiveorder or entering into an agreement withthe prosecutor, to limit the use of such dis-closures to the IAC proceeding.

Applicable Rule

• Rule 1.6 (Confidentiality of Infor-mation)

Inquiry

This Committee has been asked what alawyer may and may not do when a for-mer client asserts a claim of ineffectiveassistance of counsel under the District ofColumbia’s Rules of Professional Con-duct (“D.C. Rules” or “Rules”) in light ofan opinion on the same subject issued bythe American Bar Association’s StandingCommittee on Ethics and ProfessionalResponsibility. This opinion specificallyaddresses to what extent and under whatcircumstances D.C. Rule 1.6(e)(3) per-mits a lawyer to disclose informationprotected by D.C. Rule 1.6 (“protectedinformation”) to the prosecutor defend-ing the IAC claim or to others?

January 2013 THE DISTRICT OF COLUMBIA BAR 363

9E.g., Van Asdale v. International Game Tech-

nology, 577 F.3d 989, 995-96 (9th Cir. 2009);Crews v. Buckman Lab. Int’l, Inc., 78 S.W.3d 852,864 (Tenn. 2002); Spratley v. State Farm Mut.Automobile Ins. Co., 78 P.3d 603, 609-10 (Utah2003); Burkhart v. Semitool, Inc., 5 P.3d 1031,1041-42 (Mont. 2000).

10We do not think that an in-house lawyer’s

salary constitutes a “fee” within the meaning ofRule 1.6(e)(5). See O’Brien v. Stolt-Nielsen Transp.Group, Ltd., 838 A.2d 1076, 1084, 1086 (Conn.Super. 2003) (by implication).

11See, e.g., Van Asdale v. International Game

Technology, 577 F.3d 989 (9th Cir. 2009) (Sar-banes-Oxley whistleblower provision preemptsattorney-client privilege); Willy v. AdministrativeReview Bd., U.S. Dep’t of Labor, 423 F.3d 483 (5thCir. 2005) (same; whistleblower provisions of fed-eral environmental laws); Kachmar v. SungardData Sys., Inc., 109 F.3d 173 (3rd Cir. 1997) (same;title VII of Civil Rights Act of 1964); Stinneford v.Spiegel Inc., 845 F. Supp. 1243 (N.D. Ill. 1994)(same; Age Discrimination in Employment Act);Rand v. CF Indus., Inc., 797 F. Supp. 643 (N.D. Ill.1992) (same); Crews v. Buckman Lab. Int’l, Inc., 78S.W.3d 852 (Tenn. 2002) (same; common-lawretaliatory discharge).

12A lawyer who believes she has a cause of

action against her former employer/client thatmight overcome the strictures of Rule 1.6(e)(3), butdoes not want to risk violating Rule 1.6(a), pre-sumably could file a bare-bones complaint thatdoes not disclose protected information and thenseek a ruling that her cause of action overcomes theRule 1.6 restriction against disclosure. If sheobtained a favorable ruling from the court, she thencould file an appropriate amended complaint.

13The requirement that disclosure be limited to

what is “reasonably necessary” to respond to anallegation of impropriety, D.C. Rule 1.6(e)(3), isone of proportionality. Thus, an employer/client’sdischarge letter to the in-house lawyer that makeswhat the lawyer believes are inaccurate assertionsabout the lawyer’s conduct quite possibly wouldnot justify the filing of a lawsuit, available to thepublic, that reveals client/employer confidences orsecrets; filing a complaint under seal might be adifferent story. See D.C. Rule 1.6 cmt. [23](“[D]isclosure should be no greater than . . . neces-sary to vindicate innocence [and] should be madein a manner that limits access to the information to. . . persons having a need to know it, and appro-priate protective orders or other arrangementsshould be sought by the lawyer to the fullest extentpracticable”); Eckhaus v. Alfa-Laval, Inc., 764 F.Supp. 34 (S.D.N.Y. 1991) (negative internal per-formance review not a sufficient basis for revealingemployer/client information in ensuing slanderaction).

In July 2010, the American Bar Asso-ciation’s Standing Committee on Ethicsand Professional Responsibility issuedFormal Ethics Opinion No. 10-456, enti-tled “Disclosure of Information to Prose-cutor When Lawyer’s Former ClientBrings Ineffective Assistance of CounselClaim,” which analyzed the “self-defenseexception” in the ABA’s Model Rule ofProfessional Conduct 1.6 to address“whether a criminal defense lawyerwhose former client claims that thelawyer provided constitutionally ineffec-tive assistance of counsel may, withoutthe former client’s informed consent, dis-close confidential information to govern-ment lawyers prior to any proceedings onthe defendant’s claim in order to help theprosecution establish that the lawyer’srepresentation was competent.” Apply-ing the Model Rules, that opinion con-cluded that although a—

lawyer may have a reasonable need to

disclose relevant client information in a

judicial proceeding to prevent harm to

the lawyer that may result from a find-

ing of ineffective assistance of coun-

sel . . . , it is highly unlikely that a

disclosure in response to a prosecution

request, prior to a court-supervised

response by way of testimony or other-

wise, will be justifiable.

The D.C. Rules differ from the ABAModel Rules. Importantly, the ModelRule allows disclosure of protectedinformation only in the context of anactual or contemplated proceeding,while the D.C. Rule allows such disclo-sure (assuming its requisites otherwiseare satisfied) regardless of whether aproceeding is pending or even contem-plated. Compare Model Rule 1.6(b)(5)with D.C. Rule 1.6(e)(3). As discussedfurther below, the committee disagreeswith the ABA’s conclusion that “it ishighly unlikely that a disclosure inresponse to a prosecution request, priorto a court-supervised response by wayof testimony or otherwise, will be justi-fiable.”

Analysis

An IAC claim pits a lawyer’s broadconfidentiality obligation to a formerclient1 against the lawyer’s limited right

of self-defense. The target of the IACclaim is not the lawyer personally but theconstitutionality of a criminal convictionor sentence in a case where the lawyerrepresented the defendant. An IAC claimdiffers from a criminal charge, discipli-nary charge, or civil claim filed directlyagainst the lawyer because the lawyer isnot a party to the proceeding. In an IACclaim, the lawyer is a mere witness, albeitan important one who might have anindependent professional interest inresponding to the allegations made in theIAC claim.

To prevail on an IAC claim, a formerclient must prove that the lawyer’s per-formance was deficient (i.e., that “coun-sel made errors so serious that counselwas not functioning as the ‘counsel’guaranteed the defendant by the SixthAmendment”) and that the deficient per-formance prejudiced the defense (i.e.,that “counsel’s errors were so serious asto deprive the defendant of a fair trial, atrial whose result is reliable.”). Strick-land v. Washington, 466 U.S. 668, 687(1984).

Given the waiver of attorney-clientprivilege that typically accompanies theassertion of an IAC claim, it is temptingto assume that the ethical confidentialityobligation under Rule 1.6 is also waived.However, such an assumption erroneous-ly conflates the lawyer’s ethical obliga-tion under the Rules of ProfessionalConduct with the attorney-client privi-lege under the rules of evidence.

Under D.C. Rule 1.6, protected infor-mation includes not only informationwithin the attorney-client privilege(“confidences,” in the parlance of therule) but also “other information gainedin the professional relationship that theclient has requested be held inviolate, orthe disclosure of which would be embar-rassing, or would be likely to be detri-mental, to the client” (“secrets,” in theparlance of the rule). Rule 1.6(b). Thus,even if there is no enforceable privilege,Rule 1.6 precludes the lawyer from vol-untarily revealing protected informationother than in accordance with an explicitexception to Rule 1.6. Moreover, even ifthe confidentiality obligation under Rule1.6 were congruent with the evidentiaryattorney-client privilege, the effectivescope of any privilege waiver is notalways clear.2

D.C. Rule 1.6(e)(3) will allow lawyersto reveal some protected information inresponse to an IAC claim in someinstances. Under that rule, however, thelawyer’s discretion to voluntarily revealinformation is limited to the extent towhich the disclosure is “reasonably nec-essary to respond to specific allegationsby the [former] client concerning thelawyer’s representation of the client”D.C. Rule 1.6(e)(3) (emphasis added).“Reasonably” means “the conduct of areasonably prudent and competentlawyer.” Rule 1.0(j).

The fact that a successful IAC claimmay result in a new trial or sentencing forthe original underlying charge or offensefurther complicates the analysis. Inassessing what can reasonably be dis-closed without seeking a protective orderor reaching an agreement with the prose-cutor limiting the disclosure and use ofthe protected information to the IAC pro-ceeding, the lawyer should consider theextent to which information provided inresponse to the IAC claim could helpconvict the former client in a new trial.

What can or should be done in a par-ticular case will depend on the specificfacts of that case. Extreme facts illustratethe pressure points in an analysis thatultimately turns on reasonableness:

1. Suppose a former client brings anIAC claim attacking his conviction for arobbery in the Georgetown neighbor-hood. The former client alleges that thelawyer failed to interview and subpoenapotential witness X, whose testimony, theformer client alleges, would have contra-dicted a key element of the prosecution’srobbery case. The lawyer’s case file con-tains protected information about thelawyer’s handling of issues relating to X,but it also contains protected informationtying the former client to an unsolvedmurder in the Capitol Hill neighborhood.Assume initially that the murder hasnothing to do with X or the robbery.

In such a scenario, the lawyer wouldviolate Rule 1.6 by sharing with prosecu-tors or others information about the mur-der. Because the information tying theformer client to the murder is not relevantto the specific allegations of IAC, theself-defense exception does not authorizeits disclosure. Moreover, even if unprivi-leged,3 disclosure of information impli-cating a former client in a murder would

364 THE DISTRICT OF COLUMBIA BAR January 2013

1An IAC claim typically is made by a former

client of the accused lawyer. If the lawyer is stillrepresenting the client, the resulting conflict ofinterest likely will require the lawyer to withdrawfrom the representation. In re Ponds, 888 A.2d 234,239 (D.C. 2005) (applying Maryland Rules of Pro-fessional Conduct pursuant to choice of law provi-sions of D.C. Rule 8.5(b)(1)).

2This opinion uses the phrase “protected infor-

mation” to describe the information protected fromvoluntary disclosure by Rule 1.6. Other short-handphrases were considered but rejected because of arisk of confusion with the “confidence” and“secret” concepts so carefully defined by Rule 1.6.

3The incriminating information might have

come to the lawyer directly from the former clientin a communication protected by the attorney-clientprivilege. However, the lawyer might also haveobtained the information in communications withthird parties to which the attorney-client privilege

be “embarrassing” and “detrimental” tothe former client, thereby falling withinthe Rule 1.6 definition of a “secret” thatthe lawyer cannot reveal voluntarily.

2. At the other end of the spectrum,consider a former client’s IAC claim thatthe lawyer failed to file an appeal despitethe client’s instruction to do so. Theclient pleaded guilty but now alleges thatthe sentence he received was too harshand should have been appealed. If true,the lawyer’s failure to file a client-requested appeal breached an importantduty to a client. The lawyer is the onlywitness who can rebut or confirm theallegation, which is both serious and spe-cific. The lawyer’s account is that the for-mer client never directed her to file anappeal. Further, the lawyer would say shetold the former client that there was nobasis for such an appeal because the sen-tence was the one to which the client hadagreed as part of the plea bargain. Thelawyer also has a confirming letter sent tothe former client stating, “per our conver-sation today, I will not be filing an appealin your case.” Such disclosure relatessolely to the former client’s IAC allega-tion of a clear breach of duty. Thus, asdiscussed below, the Committee does notbelieve that a lawyer in this situationmust await a court order compelling thelawyer to reveal confidential informationabout the appeal. Nor must the lawyerseek a protective order confining use ofthe information to the IAC proceedingbecause the disclosure does not implicatethe former client in uncharged criminalactivity, and will have no foreseeableadverse effects on any retrial or resen-tencing if the conviction or sentence isreversed.

3. In some cases, the appropriateresponse may be no response because theallegations simply will not be believed byanyone who reads them. Imagine a sealedjuvenile proceeding in which the recordwill be known only to the judge and theinvolved lawyers. The former clientmakes an IAC claim founded on unsub-stantiated and palpably incredible allega-tions of a vast and sinister conspiracybetween prosecution and defenselawyers. The accused lawyer knows thatthe presiding judge, before whom sheappears on a regular basis, is going torecognize the allegations for what theyare, namely the product of a troubled

mind. In that situation, there may be noresponse that is reasonably necessary torespond to the allegations in the IACclaim.

4. A slight variation in the facts ofthe first hypothetical can be used to cre-ate a difficult case in the middle. Asbefore, the former client challenging therobbery conviction alleges that thelawyer committed IAC by failing to callwitness X. In fact, the lawyer had tworeasons for not calling witness X. First,X’s expected testimony as to the robberywas cumulative of that given by otherdefense witnesses. In other words, thetestimony that X could give as to the rob-bery would not add materially to whatwas already in the record and the lawyerwas concerned that the court mightexclude it for that reason. Second, thelawyer feared that a vigorous cross-examination into X’s relationship withthe client might lead prosecutors to evi-dence implicating the client in theuncharged and unrelated murder.

How can this lawyer explain why shedid not call X without (1) misleading thecourt and prosecutors by suggesting thatthere was only one reason for not callingX or (2) implicating the former client inan uncharged murder unrelated to therobbery conviction at issue in the IACproceeding? Should the former client begiven an opportunity to reconsider pursu-ing an IAC claim that opens the door todisclosures in this area? Is it prudent fora lawyer in this situation to voluntarilyrespond to prosecutor’s requests forinformation without court approval? Ifcompelled to respond, should the lawyerseek a protective order so that the infor-mation she provides cannot be usedagainst the client in other proceedings?We address these specific questionsbelow.

Disclosure questions in the IAC con-text are necessarily fact-bound, and care-ful reflection may reveal them to be morecomplicated than they first appear. Fur-ther complicating a lawyer’s analysis isthe emotional reaction that the lawyermay have upon learning that a formerclient has accused her of IAC. Feelings ofanger and betrayal may impede an objec-tive analysis of these issues.

This opinion offers a framework forthe analysis, beginning with a briefreview of the law governing IAC claimsin Part A below. Part B summarizes thelawyer’s typical role as a witness in anIAC claim. Part C reviews the ABA’sanalysis of IAC disclosure issues underthe Model Rules of Professional Con-duct. Part D analyzes the relevant provi-

sions of the District of Columbia Rules,which differ from the Model Rules in sig-nificant respects.

A. Using an Ineffective Assistance of

Counsel Claim to Overturn a Crimi-

nal Conviction or Sentence on Sixth

Amendment Grounds.4

A criminal defendant’s constitutionalright to counsel, see U.S. Const., amend.VI, “is the right to the effective assistanceof counsel,” Strickland v. Washington,466 U.S. 668, 686 (1984) (quotingMcMann v. Richardson, 397 U.S. 759,771 n. 14 (1970)). A conviction or sen-tence may be reversed if the defendantcan show that her lawyer provided “inef-fective assistance of counsel.” Stricklandimposes a two-pronged test for ineffec-tive assistance.

“First, the defendant must show thatcounsel’s performance was deficient.This requires showing that counsel madeerrors so serious that counsel was notfunctioning as the ‘counsel’ guaranteedthe defendant by the Sixth Amendment.”Strickland, 466 U.S. at 687. The court’sreview of the lawyer’s performance“must be highly deferential,” with “coun-sel . . . strongly presumed to have ren-dered adequate assistance and made allsignificant decisions in the exercise ofreasonable professional judgment.” Id. at689-90. “The question is whether anattorney’s representation amounted toincompetence under prevailing profes-sional norms, not whether it deviatedfrom best practices or most common cus-tom.” Harrington v. Richter, 131 S. Ct.770, 778 (2011).

A showing of incompetence alone doesnot require that the underlying convictionor sentence be vacated: “Second, thedefendant must show that the deficientperformance prejudiced the defense.This requires showing that counsel’serrors were so serious as to deprive thedefendant of a fair trial, a trial whoseresult is reliable.” Strickland, 466 U.S. at687. The defendant “must show that thereis a reasonable probability that, but forcounsel’s unprofessional errors, the resultof the proceeding would have been dif-ferent. A reasonable probability is a prob-ability sufficient to undermine

January 2013 THE DISTRICT OF COLUMBIA BAR 365

did not apply. Such information might still be pro-tected by the work product doctrine. Even in theabsence of an enforceable evidentiary privilege,however, the information would still be protectedfrom voluntary disclosure by the broader confiden-tiality obligation imposed by Rule 1.6.

4Although this Committee does not opine on

questions of law outside the Rules of ProfessionalConduct, ethical issues rarely arise in a vacuum.Here, as in many cases, the ethics analysis benefitsfrom an understanding of the legal context in whichthe question arises. The accompanying discussionof ineffective assistance of counsel jurisprudenceunder the Sixth Amendment reflects the Commit-tee’s understanding of relevant law.

confidence in the outcome.” Id. at 694.

In this jurisdiction, “[t]here is a pre-sumption in favor of holding [an eviden-tiary] hearing” on an IAC claim “thatrequires an inquiry into matters outsideof the record” but the trial court may rulewithout a hearing “[w]here the existingrecord provides an adequate basis for dis-posing of the motion.” Ready v. UnitedStates, 620 A.2d 233, 234 (D.C. 1993)(citation omitted); see also Lanton v.United States, 779 A.2d 895 (D.C. 2001)(reversing denial of IAC claim andremanding for a hearing). In the Districtof Columbia courts, “a hearing is unnec-essary when the motion consists of (1)vague and conclusory allegations, (2)palpably incredible claims, or (3) allega-tions that would merit no relief even iftrue.” Ready, 620 A.2d at 234.

B. Former Counsel as Witness to Con-

duct at Issue in IAC Claim.

When an IAC claim is filed, the lawyerbecomes a witness respecting the formerclient’s allegations about the representa-tion:

Where the defendant’s allegations of

fact, if credited, would support a finding

of ineffective assistance, the court is

required to obtain testimony from the

attorney, either to support the former

client’s claim or to undermine it, and (if

there is a conflict in the testimony of the

movant and his former attorney) to

make any needed credibility findings.

Douglas v. United States, 2011 WL335861, at *1 (S.D.N.Y. Jan 28, 2011).

Attorney-client privilege often pre-vents lawyers from disclosing informa-tion that prosecutors and others woulddeem relevant. For example, a client’sconfession to a lawyer of involvementwith a past crime would be relevant to aninvestigation of that crime. Attorney-client privilege, however, would normal-ly preclude lawyers from revealing – orbeing forced to reveal – that confessionto prosecutors or others. See, e.g. In rePublic Defender Service, 831 A.2d 890,906 (D.C. 2003). A client’s assertion ofan IAC claim, though, generally waivesthe attorney-client privilege.5 The waiverallows a court to compel an attorney totestify about the otherwise privilegedinformation that the client has placed inissue.

When an IAC claim is filed, prosecu-tors may want information from thedefense lawyer to help them respond tothe claim.6 Anecdotal evidence suggeststhat different defense lawyers react dif-ferently to prosecutors’ requests forinformation. At one end of the spectrumare lawyers who are angered by the claimand eager to beat it back. Attorneys havea reputational interest in having IACclaims defeated. E.g., SEC v. Forma, 117F.R.D. 515, 524-25 (S.D.N.Y. 1987).They may also fear future civil claims bythe former client.7

At the other end of the spectrum areattorneys who police themselves forpotential IAC issues. When such lawyersor their supervisors spot such an issue,they withdraw, refer the client to othercounsel, and cooperate with the newcounsel. If new counsel tells them thatthe client objects to any voluntary disclo-sure to prosecutors, they do not discloseuntil a court requires them to do so.

Between those extremes are under-standably concerned lawyers who do notwant to jeopardize their licenses, theirreputations, or their ability to continuedoing defense work but who may notwant to assist the prosecution against aformer client. Court-appointed lawyersunder the Criminal Justice Act may beespecially uncomfortable because theirlivelihoods depend on continued appoint-ments by the court that will be consider-ing the IAC claim.

In many places, informal practicesdeveloped within the prosecution anddefense bars prior to the issuance of ABAEthics Opinion 10-456. The followingwas common in at least one jurisdiction:

Because the need for the attorney’s testi-

mony was patent and the waiver of priv-

ilege plain, it has become the practice

for attorneys to supply the required tes-

timony (in the form of an affidavit or

declaration, which qualifies as testimo-

ny and so perfectly acceptable) without

obtaining express written consent from

the former client. Formal consent was

deemed unnecessary because the client

had waived the privilege simply by

making the motion. Additionally, some

attorneys have given their testimony

without being formally ordered to do so

by a court, knowing that the waiver

would be given effect and that a court

order was guaranteed to issue. In most

instances, the testimony was solicited by

and given to the prosecutor’s office that

originally indicted and prosecuted the

defendant, since it is the prosecutor that

assembles the record in opposition to the

[28 U.S.C.] § 2255 motion.

Douglas v. United States, 2011 WL335861, at *1.

C. ABA Ethics Opinion 10-456, Dis-

closure of Information to Prosecutor

When Lawyer’s Former Client Brings

Ineffective Assistance of Counsel

Claim.

The ABA Opinion addresses whetherand the conditions under which a defenselawyer may disclose confidential infor-mation to prosecutors in the wake of anIAC claim by the lawyer’s former client.The last sentence of the opinion con-cludes that “it will be extremely difficultfor defense counsel to conclude that thereis a reasonable need in self-defense todisclose client confidences to a prosecu-tor outside any court-supervised setting.”

The ABA Opinion states that a client’swaiver of privilege by bringing an IACclaim “has the legal effect of forgoing theright to bar disclosure of the client’s priorconfidential communications in a judicialor similar proceeding. Standing alone,however, that does not constitute‘informed consent’ to the lawyer’s volun-tary disclosure of client information out-side such a proceeding.” Id. Thus, a clientmight agree that the lawyer could testifyat an adjudicatory hearing “to the extentthe court requires but not agree that theformer lawyer voluntarily may disclosethe same client confidences to the oppo-site party prior to the proceeding.” Id. at2-3.

Although Model Rule 1.6(b)(5) hasseveral provisions allowing lawyers toreveal confidential information to defendthemselves in certain situations,8 the only

366 THE DISTRICT OF COLUMBIA BAR January 2013

5Eldridge v. United States, 618 A.2d 690, 693

n. 3 (D.C. 1992); Doughty v. United States, 574A.2d 1342, 1343 (D.C. 1990); see also Bittaker v.Woodford, 331 F.3d 715, 722 (9th Cir. 2003); Unit-ed States v. Wiggins, 184 F. Supp. 673, 677-78(D.D.C. 1960).

6The former client or any new defense lawyer

for the former client will also want informationfrom the lawyer about the conduct at issue in theIAC claim. That lawyer may, after all, end upbecoming a witness for the former client and givetestimony that helps the former client’s allegationsof IAC. The analysis that governs the lawyer’sability to talk to the former client or the formerclient’s new counsel is quite different from theanalysis that governs the lawyer’s ability to shareinformation about the representation with prosecu-tors.

7In some cases, the rejection of a post-convic-

tion IAC claim may collaterally estop a later mal-practice claim against the attorney for the samealleged conduct. Johnson v. Sullivan, 748 F. Supp.2d 1, 9-12 (D.D.C. 2010); Smith v. Public Defend-er Serv., 686 A.2d 210, 211-12 (D.C. 1996). But seeBrown v. Jonz, 572 A.2d 455, 457 n.7 (D.C. 1990).

8Model Rule 1.6(b)(5) provides that “[a]

lawyer may reveal information relating to the rep-resentation of a client to the extent the lawyer rea-sonably believes necessary . . . to establish a claimor defense on behalf of the lawyer in a controver-sy between the lawyer and the client, to establish a

one that the ABA Opinion found poten-tially relevant to an IAC claim was thatallowing disclosure “to the extent thelawyer reasonably believes necessary . . .to respond to allegations in any proceed-ing concerning the lawyer’s representa-tion of the client.”9 The ABA Opinionstates that “the exception is a limitedone.” Id. at 3. “A lawyer may act in self-defense under [the exception] only todefend against charges that imminentlythreaten the lawyer or the lawyer’s asso-ciate or agent with serious conse-quences.” Id. (quoting Restatement(Third) of the Law Governing Lawyers§ 64 cmt. c (2000)) (emphasis added byABA Ethics Committee).

The ABA Opinion states that this pro-vision might be read to apply to an IACclaim seeking to set aside a criminal con-viction. Id. However—

a lawyer may respond to allegations

only insofar as the lawyer reasonably

believes it is necessary to do so. It is

not enough that the lawyer genuinely

believes the particular disclosure is nec-

essary; the lawyer’s belief must be

objectively reasonable. The Comment

explaining Rule 1.6(b)(5) cautions

lawyers to take steps to limit “access to

the information to the tribunal or other

persons having a need to know it” and to

seek “appropriate protective orders or

other arrangements … to the fullest

extent practicable.” [Model Rule 1.6

cmt. 14.] Judicial decisions addressing

the necessity for disclosure under the

self-defense exception to the attorney-

client privilege recognize that when

there is a legitimate need for the lawyer

to present a defense, the lawyer may not

disclose all information relating to the

representation, but only particular infor-

mation that reasonably must be dis-

closed to avoid adverse legal

consequences. These limitations are

equally applicable to Rule 1.6(b)(5).

Permitting disclosure of client confiden-

tial information outside court-super-

vised proceedings undermines important

interests protected by the confidentiality

rule. Because the extent of trial coun-

sel’s disclosure to the prosecution would

be unsupervised by the court, there

would be a risk that trial counsel would

disclose information that could not ulti-

mately be disclosed in the adjudicative

proceeding. Disclosure of such informa-

tion might prejudice the defendant in the

event of a retrial. Further, allowing

criminal defense lawyers voluntarily to

assist law enforcement authorities by

providing them with protected client

information might potentially chill some

future defendants from fully confiding

in their lawyers.

Against this background, it is highly

unlikely that a disclosure in response to

a prosecution request, prior to a court-

supervised response by way of testimo-

ny or otherwise, will be justifiable. . . .

Id. at 4-5 (emphasis in original, foot-notes and most citations omitted).

D. Confidentiality Under D.C. Rule

1.6.

District of Columbia lawyers have anethical duty of confidentiality under Rule1.6 that is separate from, and broaderthan, the attorney-client privilege underthe law of evidence. See Adams v.Franklin, 924 A.2d 993, 999 n. 6 (D.C.2007). D.C. Rule 1.6 commands that“except when permitted under paragraph(c), (d), or (e), a lawyer shall not know-ingly . . . reveal a confidence or secret ofthe lawyer’s client.” A “confidence” is“information protected by the attorney-client privilege under applicable law,”while a “secret” is “other informationgained in the professional relationshipthat the client has requested be held invi-olate, or the disclosure of which would beembarrassing, or would be likely to bedetrimental to the client.” Rule 1.6(b).10

“These definitions and comment [6] toRule 1.6 make it clear that the lawyer’sethical duty to preserve a client’s confi-dences and secrets is broader than theattorney-client privilege.” Adams, 924A.2d at 996-97.

The ethical obligation is broader thanthe privilege because a protected “secret”under Rule 1.6 is, by definition, not sub-ject to the attorney client privilege. Thus,it is not sufficient for a lawyer to con-clude that information she wants to dis-close is outside the attorney-client

privilege. The lawyer will still violatethe ethical confidentiality obligation ifshe voluntarily reveals a “secret” otherthan in accordance with an exception insubsection (c), (d), or (e) of Rule 1.6.Information gained in the professionalrelationship that the former client doesnot want revealed or that would beembarrassing or detrimental to the clientis a protected “secret” even if it is notsubject to any enforceable evidentiaryprivilege.

This expansive confidentiality obliga-tion “[t]ouch[es] the very soul of lawyer-ing.” In re Gonzalez, 773 A.2d 1026,1030 (D.C. 2001) (quoting Fred Weber,Inc. v. Shell Oil Co., 566 F.2d 602, 607(8th Cir. 1977)). “Disclosure of clientconfidences is ‘contrary to the fundamen-tal principle that an attorney owes a fidu-ciary duty to his client and must serve theclient’s interests with the utmost loyaltyand devotion.’” Herbin v. Hoeffel, 806A.2d 186, 197 (D.C. 2002) (quoting In reGonzalez, 773 A.2d at 1031).

Violations of the confidentiality rulehave consequences. The Court in In reGonzalez sanctioned a lawyer for reveal-ing too much in a motion to withdrawfrom representation of a difficult client.11

We think it obvious that a public allega-

tion by a client’s own lawyer that the

client deliberately lied to him would be

“embarrassing” to the client and “would

be likely to be detrimental” to her . . . .

Indeed, it is difficult to understand how

a reasonable person could conclude oth-

erwise.

In re Gonzalez, 773 A.2d at 1030.12

Even had the disclosure been justified,the court noted, the lawyer “could havesubmitted his documentation in cam-era, . . . [with] appropriate redactions ofthe material most potentially damaging tohis clients (e.g., his allegations that [theclient] had misrepresented facts to himand his suggestion . . . that a demand of$90,000 by the plaintiffs in the underly-ing litigation might be reasonable).” Id.at 1032. A few years after Gonzalez was

January 2013 THE DISTRICT OF COLUMBIA BAR 367

defense to a criminal charge or civil claim againstthe lawyer based upon conduct in which the clientwas involved, or to respond to allegations in anyproceeding concerning the lawyer’s representationof the client.”

9The ABA Opinion found that the other two

clauses of Model Rule 1.6(b)(5) did not apply. Asto the first clause, an IAC claim is not a legal “con-troversy” between the lawyer and the client. ABAOpinion, at 3-4. As to the second, an IAC claim isneither a “criminal charge” nor a “civil claim”against which the lawyer must defend. Id. at 4.

10This is one area where D.C. Rule 1.6 differs

from Model Rule 1.6. The former requires confi-dentiality as to any “confidence” or “secret,” whilethe latter compels confidentiality as to “informationrelating to the representation of a client.” In theIAC context, however, this appears to be a distinc-tion without a difference.

11The Committee has not found any cases or

bar opinions holding that a defense attorney relyingon the self-defense exception disclosed more thanwas reasonably necessary in response to an IACclaim. This, of course, does not mean that suchoverly broad disclosures do not occur or that theywill go unsanctioned if they do.

12Because the lawyer’s conduct was before a

Virginia court, the D.C. Court of Appeals wasapplying Virginia’s confidentiality rule. See D.C.Rule 8.5(b)(1) (choice of law rule). Virginia’s con-fidentiality rule, however, shared the “confidencesand secrets” approach of D.C. Rule 1.6. In re Gon-zalez, 773 A.2d at 1029.

decided, the Court of Appeals sanctionedanother lawyer for saying too much whilewithdrawing from the representation of aanother difficult client. In re Ponds, 876A.2d 636 (D.C. 2005).

D.C. Rule 1.6(e)(3) contains twoexceptions that allow lawyers to revealcertain confidential client information inorder to defend themselves. Client confi-dences and secrets may be disclosed:

(1) “to the extent reasonably necessaryto establish a defense to a criminalcharge, disciplinary charge, or civilclaim, formally instituted againstthe lawyer, based upon conduct inwhich the client was involved,” or

(2) “to the extent reasonably necessaryto respond to specific allegations bythe client concerning the lawyer’srepresentation of the client.”

The first exception does not apply toan IAC claim because such a matter is not“a criminal charge, disciplinary charge,or civil claim formally instituted againstthe lawyer.” The target of the ineffectiveassistance claim is the defendant’s crimi-nal conviction rather than the lawyer per-sonally. The lawyer is not a party to theproceeding in which the claim is made.

The second exception does apply to anIAC claim.13 This exception allows alawyer to reveal protected information“to the extent reasonably necessary torespond to specific allegations by theclient concerning the lawyer’s represen-tation of the client.” One court has saidthat information is “reasonably neces-sary” if it would “seem likely to providesignificant assistance” to the lawyer’sresponse. First Fed. Sav. & Loan Ass’n v.Oppenheim, Appel, Dixon & Co., 110F.R.D. 557, 567 (S.D.N.Y. 1986).

The use of the second exception is cir-cumscribed in three ways. First, volun-tary disclosure can be made only “to theextent reasonably necessary to respond”to the allegations. “Reasonably” in thiscontext “denotes the conduct of a reason-ably prudent and competent lawyer.”D.C. Rule 1.0(j). This is an objective test;the lawyer’s subjective belief is not rele-vant to the inquiry.

The analysis of what is reasonably

necessary to respond to any particularIAC claim will depend on the facts andcircumstances surrounding the claim. Aswith any proposed disclosure of confi-dential information, a lawyer will want tocarefully consider (1) whether to dis-close, and (2) how much to disclose. Theresolution of both questions may dependon, among other things, the nature of theclaim and the content of the lawyer’s file.Because the exception is permissive, notmandatory, the lawyer may choose not torespond because, for example, the lawyermay think the disclosure may harm theclient, the prosecutor already has theinformation necessary to respond to theclaim, and the disposition of the IACclaim solely on “lack of prejudice”grounds will sufficiently protect thelawyer from reputational or other harmthat might arise from the specific allega-tions of deficient performance.

The lawyer also may consider whetherit is necessary to respond outside the IACproceeding (in addition to respondingwithin that proceeding) in order to pro-tect her reputation or other interests.Unlike the Model Rule, D.C. Rule1.6(e)(3) authorizes lawyers to respond toa client’s “specific allegations” concern-ing the lawyer’s representation even ifthose allegations are not made in a “pro-ceeding.” As the “Jordan Committee”report recommending adoption of thecurrent rules noted, “public allegationsconcerning the lawyer’s representation ofthe client may be responded to publicly ifthey have been made ‘by the client,’ evenif those charges have not been institutedformally. Thus, the client (but no oneelse) can waive the client’s right to confi-dentiality by opening the issue to publicdiscussion.” Proposed Rules of Profes-sional Conduct and Related CommentsShowing the Language Proposed by theAmerican Bar Association, Changes Rec-ommended by the D.C. Bar Model Rulesof Professional Conduct Committee, andChanges Recommended by the Board ofGovernors of the District of ColumbiaBar, at 53, ¶ 44 (Nov. 19, 1986).

Second, “[t]he requirement . . . thatthere be ‘specific’ charges of misconductby the client precludes the lawyer fromdisclosing confidences or secrets inresponse to general criticism by a client;an example of such a general criticismwould be an assertion by the client thatthe lawyer ‘did a poor job’ of represent-ing the client.” Rule 1.6 cmt. [25]. As amatter of substantive law, general criti-cisms lack the specificity necessary tostate a viable IAC claim. See, e.g., Readyv. United States, 620 A.2d at 234 (“vague

and conclusory” allegations insufficient).More fundamentally, however, D.C. Rule1.6(e)(3) precludes former defenselawyers from responding because “gener-al” allegations are outside the scope ofthe only potentially applicable self-defense exception.

Third, comment [25]14 cautions that—

disclosure should be no greater than the

lawyer reasonably believes is necessary

to vindicate innocence, the disclosure

should be made in a manner that limits

access to the information to the tribunal

or other persons having a need to know it,

and appropriate protective orders or other

arrangements should be sought by the

lawyer to the fullest extent practicable.

The Restatement describes the operativeconcept as one of “proportionate andrestrained use.” Restatement (Third) ofthe Law Governing Lawyers § 64 cmt. (e)(2000). “The lawyer must reasonablybelieve that options short of use or dis-closure have been exhausted or will beunavailing or that invoking them wouldsubstantially prejudice the lawyer’s posi-tion in the controversy. Id.

Courts in other jurisdictions haveendorsed the use of protective orders inorder to prevent, for example, prosecu-tors from using information obtained dur-ing the adjudication of the IAC claim in asubsequent prosecution. In 2003, theNinth Circuit affirmed a protective orderprecluding use of privileged attorney-client materials obtained in discovery forany purpose other than litigating theinstant federal habeas petition.

If a prisoner is successful in persuading

a federal court to grant the writ, the

court should aim to restore him to the

position he would have occupied, had

the first trial been constitutionally error-

free. Giving the prosecution the advan-

tage of obtaining the defense case

file—and possibly even forcing the first

lawyer to testify against the client dur-

ing the second trial—would assuredly

not put the parties back at the same start-

ing gate.

Bittaker v. Woodford, 331 F.3d 715, 722-23 (9th Cir. 2003) (en banc); accord Unit-ed States v. Nicholson, 611 F.3d 191,

368 THE DISTRICT OF COLUMBIA BAR January 2013

13The permissive disclosure exception in D.C.

Rule 1.6(e)(3) differs from its Model Rule counter-part in three respects. D.C. Rule 1.6(e)(3) appliesonly to “specific” allegations, and only when made“by the client.” By contrast, Model Rule 1.6(b)(5)does not condition disclosure on the allegationsbeing “specific,” and does not require that the “alle-gations” come from the lawyer’s client. Finally,D.C. Rule 1.6(e)(3), unlike Model Rule 1.6(b)(5),does not require that the disclosure be made in thecontext of a “proceeding.”

14 Comment [25] to D.C. Rule 1.6 is somewhat

confusing because it conflates the two exceptionsof subsection (e)(3). For example, the first sen-tence discusses “specific allegations,” a phrase thatappears only in the second exception, and “estab-lish[ing] a defense,” a phrase that appears only inthe first exception. In any event, it is “the text ofeach Rule [that] is controlling”; the comments areonly “guides to interpretation.” D.C. Rules, Scope[6].

216-217 (4th Cir. 2010) (applying Bittak-er to preclude use at resentencing of priv-ileged material revealed in connectionwith the successful IAC claim).15

In the first hypothetical above, forexample, a client convicted of robberyhas alleged that the lawyer failed to inter-view and subpoena a key witness namedX. The lawyer’s case file has informationabout X. It also has information from theclient that links the client to an unchargedmurder that is unrelated to the robberyconviction that the client is attackingwith the IAC Claim. Obviously, disclo-sure of the incriminating evidence as tothe murder is not required to vindicatethe lawyer’s handling of matters involv-ing witness X. That alone takes the mur-der evidence outside the secondself-defense exception of Rule 1.6(e)(3).

The self-defense exception in Rule1.6(e)(3) does not require defenselawyers to share information with prose-cutors when an IAC claim is filed.Instead it gives lawyers discretion (“mayuse or reveal”) to share information vol-untarily, but only “to the extent reason-ably necessary to respond to specificallegations by the client concerning thelawyer’s representation of the client.”Moreover, even where disclosure of pro-tected information is authorized, thedefense lawyer should seek to protect theinformation against use against the for-mer client in other contexts to the fullestextent practicable. D.C. Rule 1.6, cmt.[25]; accord Nicholson, 611 F.3d 191;Bittaker, 331 F.3d 715. In the context ofan IAC proceeding, a lawyer can seekthis protection from the tribunal hearingthe case, through a litigated motion or aso-ordered stipulation between counsel.Alternatively, the lawyer might make thedisclosure extrajudicially after obtainingthe prosecutor’s binding written agree-ment that the government will not use theinformation in other contexts. The for-mer lawyer also could work with the for-mer client or the former client’s newcounsel in deciding how to proceed.

Further, there is case law that a clientcan prevent the disclosure of protectedinformation by abandoning the claim thatwould otherwise waive the privilege. Bit-taker, 331 F.3d at 721. To the extent thatthe IAC claim seems likely to lead to theprosecution’s discovery of informationincriminating the former client in other

matters, a call to the client’s new defenselawyer may lead to an abandonment ofthe IAC claim without the need for anydisclosure to prosecutors. See Dunlap v.United States, 2011 WL 2693915, at *3(D.S.C. July 12, 2011) (ordering the IACpetitioner to choose between (1) preserv-ing the attorney-client privilege by aban-doning or withdrawing the IAC claims,or (2) continuing to pursue the IACclaims and waiving privilege, so as torequire his former counsel to respond tothe allegations via an affidavit and,potentially, in live testimony if an evi-dentiary hearing takes place).16

The ABA Opinion concluded that “it ishighly unlikely that a disclosure inresponse to a prosecution request, prior toa court-supervised response by way oftestimony or otherwise, will be justifi-able.” Although we view the ABA’sapproach as providing a safe harbor with-in which a defense attorney’s conductcannot reasonably be questioned later, wedo not share the Opinion’s view thatextrajudicial disclosure rarely will be jus-tifiable. Under D.C. Rule 1.6(e)(3), aformer defense lawyer may share infor-mation with prosecutors “to the extentreasonably necessary to respond to spe-cific allegations by the client concerningthe lawyer’s representation of the client.”The text of the rule does not require acourt order to make the disclosures thatthe rule permits. Lawyers who are uncer-tain about whether disclosure of confi-dential information falls within theexception, however, should considerseeking a ruling from the court on theapplicability of the exception. Obtainingsuch review will be prudent in closecases.

In the second hypothetical, the formerclient files an IAC claim alleging that thelawyer violated the client’s direction tofile an appeal from the fact that the sen-tence was too long. There, the lawyermay choose to share with prosecutors thereason no appeal was filed: that, in fact,the client never instructed the lawyer tofile the appeal; that the lawyer had dis-cussed the possibility of an appeal withthe client and the lawyer told the clientthere was no basis for doing so becausethe client had received the sentence heagreed to in the plea bargain; and that thelawyer also had sent the client a one-sen-tence letter stating, “per our conversation

today, I will not be filing an appeal inyour case.”

The defense lawyer here may correctlyconclude that sharing this informationand the “no appeal” letter with the prose-cutor is reasonably necessary to respondto the IAC claims because:

• The alleged failure to followclient’s instruction to file anappeal, if true, involves profes-sional misconduct by the lawyer.

• The lawyer is the only witnesswho can confirm or rebut theclient’s allegation that he told thelawyer to file the appeal.17

• The potential disclosure relatesonly to the former client’s specificallegations about the failure to filean appeal.

• No other portion of the file will bedisclosed to prosecutors.

The lawyer is not required to await asubpoena or court order before disclosinginformation to the prosecutor, for theD.C. Rule contemplates disclosure underthe second exception in paragraph (e)(3)even where no proceeding is under wayor even contemplated.18 Moreover, thelawyer does not need to seek a protectiveorder or an agreement with the prosecu-tors limiting use and disclosure of theprotected information to the IAC pro-ceeding because the reasons for not filingthe appeal will have no foreseeableimpact on the former client in any otherproceeding.

In the third hypothetical, the formerclient’s allegations are so outrageous, far-fetched, and unsubstantiated that thelawyer is certain that neither the judgenor any rational reader will believe them.The ethically correct initial response tosuch a claim might well be no response atall.19 That initial assessment can, ofcourse, be revisited later if the allegationsgain some unexpected traction. If thecourt surprises the lawyer by ordering an

April 2013 THE DISTRICT OF COLUMBIA BAR 369

15Accord Restatement (Third) of the Law Gov-

erning Lawyers §64 cmt. (e) (2000) (“When feasi-ble, the lawyer must also invoke protective orders,submissions under seal, and similar procedures tolimit the extent to which the information is dissem-inated.”).

16Dunlap warned the petitioner “that withdraw-

ing the pending § 2255 motion may foreclose hisability to pursue these same claims at a later date asit is a possibility that a future § 2255 could be con-sidered untimely or successive in nature.” Id. (cit-ing 28 U.S.C. § 2255(f) & (h).

17The fact that the information may be avail-

able elsewhere does not necessarily preclude dis-closure by the lawyer. The criterion in all instancesis whether disclosure is “reasonably necessary torespond to specific allegations by the client con-cerning the lawyer’s representation of the client.”D.C. Rule 1.6(e)(3).

18See supra note 13.

19“The concept of necessity precludes disclo-

sure in responding to casual charges, such as com-ments not likely to be taken seriously by others.”Restatement (Third) of the Law Governing Lawyers§ 64 cmt. (e) (2000).

evidentiary hearing, for example, thelawyer would want to reconsider whetherand how much to respond.

The fourth hypothetical is more diffi-cult. In that hypothetical, the lawyerdeclined to call witness X in the robberytrial because (1) X’s testimony wascumulative of that provided by other wit-nesses, and (2) the expected cross-exam-ination of X with respect to herrelationship with the client was likely tolead prosecutors to evidence of the for-mer client’s involvement in an unsolvedmurder.

The fact that X’s testimony was cumu-lative of that provided by others may itselfbe dispositive of the IAC claim.20 In thiscase, however, the lawyer cannot truthful-ly suggest that this was her only reason fornot calling X. An answer that goes into theother reason will implicate the formerclient in a crime unrelated to the convic-tion being attacked through the IAC claim.A suggestion that there was another reasonmay lead prosecutors down a path that willcause collateral harm to the former clientin a later proceeding unconnected with theIAC claim.21 For that reason alone, thelawyer may choose not to disclose theinformation pursuant to the self-defenseexception.

Cognizant of the fact that the Districtof Columbia has disciplined lawyers fordisclosing protected information in the

context of a judicial proceeding but out-side the limits of a Rule 1.6 exception,e.g., In re Ponds, 876 A.2d 636 (D.C.2005) (withdrawal motion); In re Gonza-lez, 773 A.2d 1026 (D.C. 2001) (same),the lawyer who finds herself in this situ-ation may well find it prudent to seek thecourt’s guidance. The lawyer may alsowant to seek a protective order to confinethe use of any disclosed information tothe IAC proceeding.

Although the District of Columbia’sself-defense exception does not require acourt order, in close cases—particularlywhere, as in an IAC proceeding, a tribu-nal is readily available—the lawyer mayfind it prudent to seek a judicial determi-nation of the limits of the exception.22

We urge careful and dispassionatethought.23 Lawyers who react quickly toan IAC claim may later find themselvesfacing discipline for having said toomuch too soon.

Conclusion

D.C. Rule 1.6(e)(3) permits a defenselawyer whose conduct has been placed inissue by a former client’s ineffective assis-tance of counsel claim to make, withoutjudicial approval or supervision, such dis-closures of information protected by Rule1.6 as are reasonably necessary to respondto the client’s specific allegations aboutthe lawyer’s performance. Even so, a

lawyer should reflect before making dis-closures of protected information to pros-ecutors, courts, or others. A lawyer’sconfidentiality obligations to her formerclient are broader than the attorney-clientprivilege. Although the former client’sclaim likely waives the evidentiary privi-lege, that alone does not eliminate thebroader confidentiality obligation owedunder Rule 1.6. Nor does the limited “self-defense” exception to confidentiality inRule 1.6(e)(3) open the door to unlimiteddisclosures to prosecutors, courts or oth-ers of protected information. The ruleallows a lawyer to disclose protectedinformation only to the extent “reasonablynecessary” to respond to “specific allega-tions” by the former client. Reasonable-ness is a fact-bound issue about whichothers may later disagree. Lawyers whoare uncertain about the permissibility ofdisclosing protected information inresponse to an IAC claim should considerseeking independent advice or judicialapproval of the disclosure.

Published January 2013

Opinion 365

Conflict of Interest Analysis for Gov-

ernment Agency Lawyer Defending

Agency from Furlough-Related

Employment Complaints While Pur-

suing Her Own Furlough-Related

Employment Complaint

Can a government lawyer represent anagency employer in defending the agencyfrom furlough-related complaintsbrought by other agency employees whenthe lawyer was also furloughed and ispursuing her own complaint in which theallegations are substantially similar tothose in the complaint she is defending?Under the D.C. Rules of ProfessionalConduct, a lawyer has a conflict of inter-est in a matter when “[t]he lawyer’s pro-fessional judgment on behalf of the clientwill be or reasonably may be adverselyaffected by the lawyer’s responsibilitiesto or interests in a third party or thelawyer’s own financial, business, proper-ty, or personal interests.” Rule 1.7(b)(4).Such a conflict plainly exists in this situ-ation. However, so-called individualinterest conflicts like this one can bewaived under Rule 1.7(c) if:

(1) Each potentially affected clientprovides informed consent to suchrepresentation after full disclosureof the existence and nature of thepossible conflict and the possible

370 THE DISTRICT OF COLUMBIA BAR April 2013

20If that were all that there was—e.g., that the

lawyer chose not to call X because X’s testimonywould be duplicative of the testimony of other wit-nesses—disclosure of that reasoning might well bewithin the self-defense exception in many IACcases.

21The former client’s IAC claim will, of course,

be harmed by any contrary response by the accusedlawyer. Rule 1.6(e)(3) permits such harm to theformer client by authorizing the lawyer to respondto the claim. However, cases like Bittaker v. Wood-ford and United States v. Nicholson take steps toprevent collateral harm to the client by confininguse of the disclosed information to the IAC pro-ceeding itself and by prohibiting use of that infor-mation against the former client in any subsequentretrial if the IAC claim is successful. Comment[25] to Rule 1.6 urging lawyers to seek “appropri-ate protective orders or other arrangements . . . tothe fullest extent practicable” also seems directed atthe prevention or mitigation of collateral harm. Itshould be noted, however, that the District ofColumbia’s Rule 1.6(e)(3) allows a lawyer inappropriate cases to respond to specific allegationsby a former client even if those allegations are notmade in the context of a pending or threatened pro-ceeding. If it really is reasonably necessary for thelawyer to make a public response to a specific pub-lic allegation by a former client, protective ordersor similar arrangements may not be available orpracticable. In that situation, the possibility ofharm to the client, collateral or otherwise, cannotpreclude a self-defense disclosure otherwiseauthorized by Rule 1.6(e)(3).

22The confidentiality obligation imposed by

Rule 1.6 applies equally to disclosures made to thecourt. Lawyers need to remember that in decidingwhat to say to the court while seeking a judicialdetermination.

23The most important thing is to stop and think

before making any disclosures. In Nesse v. ShawPittman, a lawyer’s attempt to use the self-defenseexception to justify an exchange of informationwith opposing counsel was undermined by thecourt’s finding of “absolutely no indication that[the lawyer] was aware of that exception andexplicitly relied upon it when he spoke to [oppos-ing counsel].” 202 F.R.D. 344, 355 (D.D.C. 2001).“Given the [the lawyer’s] vulnerable position, andthe demand for information to be used against hisformer client, the first thing he should have doneupon hearing from [opposing counsel] was to seekindependent advice. Accepting [the law firm’s] posthoc rationalization of his behavior now is the surestway to discourage lawyers from seeking suchadvice; lawyers would be encouraged to make dis-closures to their former client’s opponents withoutgetting independent advice as to whether to do it inthe hope that, after the disclosure, a second lawyerwill come up with an ethical justification that neveroccurred to them in the first place.” Id. That casedid not involve an IAC claim. This Committee doesnot believe that independent professional advice isrequired before a lawyer who is accused of IAC candisclose responsive information to prosecutors. Thelawyer needs to recognize the issue and think itthrough.

adverse consequences of such rep-resentation; and

(2) The lawyer reasonably believesthat the lawyer will be able to pro-vide competent and diligent repre-sentation to each affected client.

The only affected client here is theagency. The agency’s informed consentto the conflicted lawyer’s representationnotwithstanding her individual interestconflict would satisfy the requirements ofthe first paragraph. But client consentalone is not enough. Under the secondparagraph, the lawyer must also reason-ably believe that she can provide compe-tent and diligent representation to theagency in the matter despite her personalinterest, and her belief must be objective-ly reasonable under the circumstances.That may be a difficult standard to meetwhen the lawyer is pursuing her ownchallenge to the furlough while beingasked to defend the agency against sub-stantially similar challenges by otheraffected agency employees.

Applicable Rules

• Rule 1.7 (Conflict of Interest)• Rule 5.1 (Responsibilities of Part-

ners, Managers, and SupervisoryLawyers)

• Rule 5.2 (Subordinate Lawyers)

Inquiry

As has been widely reported, automaticcuts to the federal government’s budget –the so-called “sequester” – are requiringfederal agencies to find ways to reducetheir costs of operation. One way toreduce costs is to furlough governmentemployees. The Committee has receiveda number of inquiries from governmentlawyers about their obligations under theD.C. Rules of Professional Conduct whenasked to work on sequester-related fur-lough disputes that may affect them per-sonally. The inquirers are lawyers in thefederal government whose normal respon-sibilities include defending their agenciesagainst employment-related complaintsbrought by agency employees. Theselawyers are themselves agency employ-ees, each of whom has the right to chal-lenge agency employment actions,including furloughs, that affect them per-sonally. When multiple employees filecomplaints, we understand that eachemployee’s complaint is handled separate-ly in an administrative proceeding or liti-gation that involves only the agency andthe individual employee as parties.

Employment-related complaints nor-mally turn on the specific facts relating to

the particular employee. Even when asingle action such as a furlough affects agroup of employees, complaints broughtby individual members of that group maybe factually distinguishable from eachother. For example, a complaint by anemployee who met certain filing dead-lines would be distinguishable from anotherwise identical one brought by anemployee who failed to meet the dead-line. Different individuals may choose tochallenge the decision affecting them indifferent ways. Accordingly, as discussedfurther below, whether an attorney mayhave a conflict of interest in defendingthe agency against a furlough complaintwhile pursuing her own furlough com-plaint against the agency will depend onthe similarity between the allegations inthe attorney’s complaint and the com-plaint she is defending, and on whetherthe outcome of the complaint the lawyeris defending will have a persuasive orbinding effect on her own complaint.The specific rules that govern furloughs,including employees’ notice and appealrights, depend on the nature and length ofthe furlough. See generally 5 C.F.R. pt.351, Reduction in Force; 5 C.F.R. pt.752, Adverse Actions.

To crystalize these issues for discus-sion, we will hypothesize a situationinvolving all the following elements:

1. One agency’s implementation of thesequester resulted in a decision tofurlough a specific group of employ-ees, including agency lawyers whonormally defend the agency againstemployment-related complaints.

2. An agency lawyer normally chargedwith defending the agency in suchmatters has filed a complaint chal-lenging her own furlough.

3. Her personal complaint about herfurlough is pending and unresolvedwhen she is asked to defend theagency against furlough-relatedcomplaints filed by one or moreother members of that furloughedgroup, the allegations of which aresubstantially similar to those in herown complaint. The resolution ofone of the complaints may have apersuasive or binding effect on theother complaints.

4. The agency assigning her to defendagainst the other complaints knowsthat the lawyer is challenging herown furlough but still wants (and,perhaps, needs) that lawyer todefend against the substantially sim-ilar complaints brought by othermembers of the furloughed group.

Do the D.C. Rules of ProfessionalConduct permit the agency lawyer to rep-

resent her agency client in defending theagency from those furlough-related com-plaints in this situation?1

Analysis

Rule 1.7 of the District of ColumbiaRules of Professional Conduct groupsconflicts of interest into two categories:(1) those that can be waived under somecircumstances, and (2) those that cannever be waived even if all affectedclients consent. Rule 1.7(a) defines thenon-waivable conflict: “A lawyer shallnot advance two or more adverse posi-tions in the same matter.” Rule 1.7(b)defines four types of conflicts that can bewaived under circumstances set out inRule 1.7(c). As discussed more fullybelow, the inquiry under considerationdoes not involve a non-waivable conflictunder Rule 1.7(a) but an individual inter-est conflict under Rule 1.7(b)(4). Howev-er, whether that conflict can be waivedunder Rule 1.7(c) is a difficult question towhich the answer will vary dependingupon the facts of each individual situa-tion.

1. Rule 1.7(a).

Although agency employer is askingthe lawyer to defend her agency againstfurlough-related complaints by otheragency employees at the same time thatthe lawyer is pursuing her own furlough-related complaint against her agencyemployer, there would be no violation ofRule 1.7(a) because each employee’s fur-lough challenge is a separate matter with-in the meaning of the rule.2 Because theyare separate matters, the lawyer would

April 2013 THE DISTRICT OF COLUMBIA BAR 371

1This situation also involves questions under a

separate body of law governing conflicts of interestfor federal government employees generally. Seegenerally 5 C.F.R. pt. 2635, Standards of EthicalConduct for Employees of the Executive Branch.Such matters and any other requirements of sub-stantive law are outside the D.C. Rules of Profes-sional Conduct, and we lack authority and expertiseto express any views on them. We note that lawyersare required to understand and comply with therequirements of any applicable substantive law aswell as the requirements of the Rules of Profes-sional Conduct.

2We note that Rule 1.7(a) speaks of advancing

adverse positions in “the same matter” while Rule1.7(b)(1) speaks of conflicts between clients in a“matter” that “involves a specific party or parties.”D.C. Rule 1.0(h) defines “matter” to mean “any lit-igation, administrative proceeding, lobbying activ-ity, application, claim, investigation, arrest, chargeor accusation, the drafting of a contract, a negotia-tion, estate or family relations practice issue, orany other representation, except as expressly limit-ed in a particular rule.” The meaning and effect ofthe limiting clause in Rule 1.7(b)(1) is discussed at

not be advancing “two or more adversepositions in the same matter.” According-ly, this situation would not give rise to anon-waivable conflict under Rule 1.7(a).3

2. Rule 1.7(b).

Rule 1.7(b) defines four conflict situa-tions that can be waived under circum-stances defined by Rule 1.7(c).4 Thefourth specifically addresses situations inwhich the lawyer’s individual interestsmay adversely affect the lawyer’s repre-sentation of a client:

(b) Except as permitted by paragraph (c)

below, a lawyer shall not represent a

client with respect to a matter if:

* * *

(4) The lawyer’s professional

judgment on behalf of the client

will be or reasonably may be

adversely affected by the

lawyer’s responsibilities to or

interests in a third party or the

lawyer’s own financial, business,

property, or personal interests.

This rule generally applies to a lawyerwho is asked to defend an agency’s fur-lough of other agency employees whilethe lawyer is pursuing her own challengeto the same furlough.5 A lawyer who ispursuing her own furlough complaintagainst the agency might be motivated topull her punches in defending against

substantially similar complaints broughtby other agency employees, especially ifthe lawyer’s advocacy on behalf of theagency may detrimentally affect her owncase. Thus, under the D.C. Rules of Pro-fessional Conduct, the lawyer cannot rep-resent the agency in defending againstothers’ furlough complaints “[e]xcept aspermitted by paragraph (c)” of Rule 1.7.

3. Rule 1.7(c).

Individual interest conflicts under Rule1.7(b)(4) can be waived under the condi-tions set forth in Rule 1.7(c):

A lawyer may represent a client with

respect to a matter in the circumstances

described in paragraph (b) above if

(1) Each potentially affected client pro-vides informed consent to such rep-resentation after full disclosure ofthe existence and nature of the possi-ble conflict and the possible adverseconsequences of such representa-tion; and

(2) The lawyer reasonably believes thatthe lawyer will be able to providecompetent and diligent representa-tion to each affected client.

The phrase “informed consent” in thefirst paragraph means “the agreement bya person to a proposed course of conductafter the lawyer has communicated ade-quate information and explanation aboutthe material risks of and reasonablyavailable alternatives to the proposedcourse of conduct.” Rule 1.0(e).

Our hypothetical assumes that thelawyer’s employer – her agency client – hasgiven informed consent to her representa-tion of the agency in defending againstother employees’ furlough complaintswhile the lawyer pursues her own, substan-tially similar furlough complaint against theagency. In short, we assume that theagency has considered the lawyer’s poten-tially conflicting personal motivations anddecided that it still wants the lawyer todefend it from substantially similar fur-lough complaints filed by others. Such aconsent would satisfy Rule 1.7(c)(1).6

Under Rule 1.7(c)(2), however, theclient’s consent alone is not enough towaive the conflict. In addition, in orderto undertake a representation, the lawyermust “reasonably believe[] that thelawyer will be able to provide competentand diligent representation to each affect-ed client.” That is, the lawyer must holdsuch a belief and that belief must be rea-sonable under an objective standard.Under Rule 1.0(j), “‘reasonable’ or ‘rea-sonably’ when used in relation to conductby a lawyer denotes the conduct of a rea-sonably prudent and competent lawyer.”

As we recognized in another opinion:

[T]he prohibition of Rule 1.7(b)(4) . . . is

one which is highly dependent on the

circumstances of the representation and

the lawyer’s own circumstances. In this

Opinion, we can do no more than identi-

fy the conflict of interest considerations,

and leave it to the inquirer to determine

whether the particular circumstances of

his representation of his client are such

that his judgment “will be or reasonably

may be adversely affected” by the fee

arrangement. The test to be applied is an

objective one, that is, whether a lawyer’s

judgment “will be or reasonably may be

adversely affected” by certain circum-

stances is determined by the position of

a reasonable lawyer under the circum-

stances.

D.C. Legal Ethics Opinion 300 (2000).

In a later opinion, we raised concernsunder Rule 1.7(b)(4) about an arrange-ment in which “success” in representingthe client in an immigration matter wouldtrigger extensive and long-lasting finan-cial support obligations from the lawyerto the immigration client:

The significant financial obligations

imposed by the Affidavit of Support can

create exactly the kind of conflict

addressed by this rule. A lawyer who

has second thoughts or a change in

financial circumstances, for example,

may have an incentive to sabotage the

client’s immigration application so that

the lawyer’s support obligations never

can take effect.

D.C. Legal Ethics Opinion 354 (2010).

The ABA’s Standing Committee onEthics and Professional Responsibilityconsidered personal interest conflicts inthe context of a situation in which thelawyer is asked to post bail for a client.ABA Formal Ethics Opinion 04-432(2004). Analyzing Model Rule 1.7(a)(2),7

372 THE DISTRICT OF COLUMBIA BAR April 2013

length in D.C. Legal Ethics Opinion 344 (2008).Although the word “matter” in Rule 1.7(a) is notconfined to matters involving specific parties, theonly reading of Rule 1.7(a) that makes sense in thecontext of the current inquiry is one that treats eachemployee’s individual challenge to a furlough deci-sion affecting that employee as a separate “matter.”

3 As explained in the comments to the rule,

“[i]nstitutional interests in preserving confidence inthe adversary process and in the administration ofjustice preclude permitting a lawyer to representadverse positions in the same matter. For that rea-son, paragraph (a) prohibits such conflicting repre-sentations, with or without client consent.”Rule 1.7 cmt. [2].

4The first three paragraphs involve lawyers

with two or more clients. Rule 1.7(b)(1) addressesa situation in which one client asks the lawyer torepresent it in a matter that involves and is adverseto another client. Rules 1.7(b)(2) and (b)(3) dealwith situations in which the representation of oneclient will be or is likely to be adversely affected bythe lawyer’s representation of another client. Thesethree subsections do not apply here because theagency lawyers have only one client, their agencyemployer.

5See Rule 1.7 cmt. [11] (“The lawyer’s own

interests should not be permitted to have an adverseeffect on representation of a client.”).

6A government agency that employs lawyers is

a sophisticated consumer of legal services fromwhom it is easier to get an effective waiver of cer-tain conflicts than from less sophisticated clients.See Rule 1.7 cmt. [28] (“Lawyers should . . . rec-ognize that the form of disclosure sufficient formore sophisticated business clients may not be suf-ficient to permit less sophisticated clients to pro-vide informed consent.”); D.C. Legal EthicsOpinion 354 (2010) (“While conflicts under Rule1.7(b)(4) can be waived under certain circum-stances, the enforceability of such a waiver from anindividual immigration client in these circum-stances is doubtful.”).

7Model Rule 1.7(a)(2) defines several conflict

situations, including one in which “there is a sig-nificant risk that the representation of one or more

that opinion concluded that the lawyercould post bail for the client “only inthose rare circumstances in which there isno significant risk that [the lawyer’s] rep-resentation of the client will be material-ly limited by her personal interest inrecovering the amount advanced.”8

In our view, the reasonable beliefrequirement of Rule 1.7(c)(2) is a diffi-cult obstacle to surmount if the lawyer isasked to defend the agency against a fur-lough complaint with allegations that aresubstantially similar to the allegationsshe has raised in her own furlough com-plaint against the agency. The level ofdifficulty increases with the similarity ofthe allegations in the complaints. In otherwords, the obstacle becomes harder tosurmount as the allegations convergetowards sameness. The difficulty is com-pounded if an agency or court decisionresolving one complaint will have a bind-ing effect, or may have a persuasiveeffect, on the resolution of the other com-plaint. At the other end of the scale, it isless likely that Rule 1.7(c)(2) will presentan obstacle to the lawyer’s representationwhen there is no factual or legal overlapbetween the lawyer’s own furlough-relat-ed complaint and the complaints of oth-ers against which the agency has askedthe lawyer to defend.

Although we can identify a frameworkfor the analysis of these issues generally,the answer in any particular situation willdepend on the allegations, the lawyerinvolved, and the procedural context ofthe complaint. If the lawyer does notbelieve that she can provide “competentand diligent representation to” heragency client in the furlough matterswhile pursuing her own furlough com-plaint – or if the hypothetical “reasonablyprudent and competent lawyer” in her sit-uation would not believe that she could –

she may not undertake the representationof the agency client in such matters evenif the agency is prepared to waive theconflict. Rule 1.7(c)(2).

4. Rules 5.1 and 5.2, Supervising and

Supervised Lawyers.

This inquiry also raises issues foragency lawyers who supervise fur-loughed lawyers. Supervisors and man-agers who are lawyers can be heldprofessionally responsible for their sub-ordinates’ conduct. Rule 5.1(a) requireslawyers who possess “managerial author-ity in a law firm or government agency”to “make reasonable efforts to ensure thatthe firm has in effect measures givingreasonable assurance that all lawyers inthe firm or agency conform to the Rulesof Professional Conduct.” Rule 5.1(b)requires a lawyer who has “direct super-visory authority over another lawyer” to“make reasonable efforts to ensure thatthe other lawyer conforms to the Rules ofProfessional Conduct.” Rule 5.1(c)(1)provides that a lawyer “shall be responsi-ble for another lawyer’s violation of theRules of Professional Conduct” if thelawyer “orders or with knowledge of thespecific conduct, ratifies the conductinvolved.”9

In turn, a subordinate lawyer is respon-sible for complying with the professionalconduct rules even if a supervisor orother person directs her to engage in pro-hibited conduct. See Rule 5.2(a) (“Alawyer is bound by the Rules of Profes-sional Conduct notwithstanding that thelawyer acted at the direction of anotherperson”). However, a subordinate lawyerdoes not violate the professional conductrules “if that lawyer acts in accordancewith a supervisory lawyer’s reasonableresolution of an arguable question of pro-fessional duty.” Rule 5.2(b).

Conclusion

We recognize that an agency lawyerwould be placed in a difficult situation ifher full-time employer, the agency, askedher to defend the agency against fur-lough-related complaints that raise alle-

gations substantially similar to the allega-tions the lawyer is raising in her owncomplaint, even where the agencywaived any individual interest conflictrelating to the lawyer’s representation.Under the D.C. Rules of ProfessionalConduct, the client’s consent is necessarybut not sufficient to enable a lawyer toundertake certain kinds of matters.Clients cannot waive their right to have alawyer who reasonably believes she canprovide competent and diligent represen-tation. Moreover, supervisory lawyersmust make reasonable efforts to ensurethat their subordinate lawyers complywith the professional conduct rules.Lawyers have an affirmative obligationnot to undertake matters that they do notreasonably believe they can handle com-petently and diligently. We suggest thatagencies and their lawyers work togetherto resolve the ethical issues addressed inthis opinion.

Published April 2013

Opinion 366

Ethical Issues that Commonly Arise in

Private Adoption Matters

Lawyers who represent clients,whether birth parents or prospectiveadoptive parents, in private or independ-ent adoption proceedings in the Districtof Columbia must ensure their conductconforms to the D.C. Rules of Profes-sional Conduct. Private adoptions fre-quently give rise to a number ofsignificant ethical obligations, not theleast of which are duties arising underconflict of interest rules, that the lawyermust squarely address with his or herclient or clients, often at the onset of therepresentation. In many instances, alawyer will be required to obtain theinformed consent of one or more clients,and in some circumstances that of formerclients, regarding certain aspects of therepresentation, in order to commence orcontinue representation. Private adop-tion practitioners should be particularlymindful of ethical duties attendant tocommunications with unrepresented per-sons, as well as duties of confidentialityowed to both current and former clients.

Applicable Rules

• Rule 1.0(e) – Informed Consent• Rule 1.3 – Diligence and Zeal• Rule 1.4 – Communication • Rule 1.6 – Confidentiality of

Information

January 2014 THE DISTRICT OF COLUMBIA BAR 373

9In addition, Rule 5.2(c)(2) provides that a

lawyer shall be responsible for another lawyer’sviolation of the Rules of Professional Conduct if“[t]he lawyer has direct supervisory authority overthe other lawyer or is a partner or has comparablemanagerial authority in the law firm or governmentagency in which the other lawyer practices, andknows or reasonably should know of the conduct ata time when its consequences can be avoided ormitigated but fails to take reasonable remedialaction.”

clients will be materially limited by . . . a personalinterest of the lawyer.”

8The ABA opinion lists several examples of

“unusual situations” in which the bond-postinglawyer might conclude that continuing representa-tion is permissible:

The amount involved may, for example, benegligible and of little or no consequence tothe lawyer. There may be situations in whicha lawyer who is a friend of the family of theclient may expect that the family will indem-nify her from loss when she has posted bondfor the client in exigent circumstances. Thelawyer could commit to herself, or evenagree in writing to the client, that she wouldnot exercise her right of legal recourseagainst the client. Yet again, circumstancesmay be such that the lawyer reasonablybelieves that there is little or no risk that theclient will fail to appear.

• Rule 1.7 – Conflict of Interest: General

• Rule 1.8(e) – Conflict of Interest:Specific Rules

• Rule 1.9 – Conflict of Interest: Former Client

• Rule 4.3 – Dealing with Unrepre-sented Person

• Rule 5.4 – Professional Independ-ence of a Lawyer

Inquiry

The Committee has been asked to pro-vide guidance to the Bar on ethical con-siderations that commonly arise in“private adoptions,” which are alsoreferred to as “independent adoptions.”For purposes of this opinion, these termsdescribe an adoption in which the birthparents have neither voluntarily relin-quished their parental rights to an author-ized public or private “child-placingagency”1 nor had their parental rightsinvoluntarily terminated.2 These lattertypes of adoptions are outside the scopeof this opinion.

A private adoption may present a num-ber of issues that implicate the D.C.Rules of Professional Conduct (“D.C.Rules”), including: (1) accepting legalfees from a third party (typically, for rep-resenting the birth parent(s) from the per-son(s) seeking to adopt); (2) engaging inreciprocal client referrals among otheradoption practitioners; (3) jointly repre-senting both birth parents; (4) communi-cating with an unrepresented party (oftenan unrepresented birth parent, whileeither representing the prospective adop-tive parent(s) or while representing theother birth parent, concerning the deci-sion or procedures to place a child foradoption or to relinquish parental rights);and/or (5) representing a client in anadoption proceeding opposite a formerclient from a previous adoption proceed-

ing. Before discussing the application ofthe ethics rules, we briefly describe thestatutes and Superior Court proceduralrules that govern private adoption pro-ceedings in the District of Columbia.3

Background

Private adoption proceedings are initi-ated in the Superior Court’s Family Divi-sion by a petition filed by person(s)seeking to adopt (“adoptive parent(s)” or“petitioner(s)”).4 The court may grant anadoption petition only after determiningthat “the adoption will be in the bestinterest of the prospective adoptee.”5

Resolution of this ultimate questionrequires the court to decide (1) whether“the prospective adoptee is physically,mentally, and otherwise suitable foradoption by the petitioner”; and (2)whether “the petitioner is fit and able togive the prospective adoptee a properhome and education.”6 To assist the courtin assessing the petitioner’s fitness, a“licensed child-placing agency” will con-duct an investigation and report its find-ings.7 The Committee is advised that inprivate adoptions the prospective adop-tive parents typically retain the entity thatwill perform the study and pay its fees.

Consent to the adoption is required“from both [birth] parents, if they areboth alive”;8 the “minority of a naturalparent is not a bar to that parent’s consent

to adoption.”9 The court may appoint anattorney to represent “a parent orguardian whose consent is required … ifthe individual is financially unable toobtain adequate representation.”10 Morecommonly, however, the adoptive parentswill pay the legal fees for a lawyer to rep-resent each birth parent that desires rep-resentation. The Committee is informedthat due to the relatively small number oflawyers regularly engaged in adoptionpractice, the same lawyers will often befacing each other, either having beenretained by the petitioner or in represent-ing a birth parent through referral fromthe petitioner’s lawyer.

Consent to the adoption must also beobtained “from the prospective adoptee ifhe or she is fourteen years of age orolder.”11 District of Columbia law doesnot provide a prospective adoptee withappointed counsel, even when theprospective adoptee’s consent isrequired. The court has public fundsavailable, but is not required by eitherstatute or Superior Court Rule, to appointa guardian ad litem (“GAL”), who is“charged with the representation of thechild’s best interest.” Notwithstandingthat every prospective adoptee, irrespec-tive of age, is deemed a party to the pro-ceeding under Super. Ct. Adoption Rule17(a), if the court does not appoint aGAL for a prospective adoptee, theremay be no lawyer – indeed, no person –involved in the proceeding who is specif-ically charged with “representation of thechild’s best interest.”12

374 THE DISTRICT OF COLUMBIA BAR January 2014

1Such adoptions are typically referred to as

“agency adoptions.” In agency adoptions, the birthparents “relinquish parental rights” to a “licensedchild-placing agency” for purposes of having theagency place the adoptee with adoptive parents; bystatute “the agency is vested with parental rightsand may consent to the adoption of the child pur-suant to the statutes regulating adoption proce-dure.” D.C. Code § 4-1406(a)(1). Therelinquishment of parental rights to a child-placingagency prior to the adoption is governed by statute.See D.C. Code §§ 4-1401, et seq.

2See D.C. Code § 16-2320(a)(6)(termination

following a finding of neglect). Although lawyersmay be involved in the representation of a birthparent or an adoptee in the termination of parentalrights proceedings, lawyers ordinarily are notinvolved in the ensuing adoption proceedings thatwill follow if a court terminates parental rights.

3This Committee does not opine on questions of

law outside of the D.C. Rules of Professional Con-duct. The ethical questions presented in thisinquiry, however, demand a contextual understand-ing of the statutory and procedural framework andof certain requirements that arise under substantiveadoption law. The accompanying discussion of thestatutes and court rules that govern adoptions in theDistrict of Columbia reflects the Committee’sunderstanding of relevant law for the sole purposeof analyzing the issues presented under the D.C.Rules of Professional Conduct.

4D.C. Code § 16-305.

5Id. § 16-309(b)(3); see, e.g., In re E.D.R., 772

A.2d 1156 (D.C. 2001).

6Id.§§ 16-309(b)(1)-(2).

7Id. § 16-307; Super. Ct. Adoption Rule 7(d).

The Committee is informed that adoptive parentsusually retain one of the licensed child-placingagencies that engage in agency adoptions to per-form the requisite home study.

8D.C. Code § 16-304(b)(2)(A). Section 16-

304(d), however, establishes two exceptions to thestatutory consent requirement to cover instanceswhen a birth parent, after notice of the adoptionpetition, either (1) cannot be located; or (2) hasabandoned the prospective adoptee and voluntarilyfailed to contribute to his support for a period of atleast six months. In addition, under D.C. Code §

16-304(e) the court may grant an adoption petitionwhen it finds “after a hearing, that the consent orconsents are withheld contrary to the best interestof the child.”

9Id. § 16-304(c).

10Id. § 16-316(a). The reference in the statute to

“a guardian” as a potential recipient of appointedcounsel “if the individual is financially unable toobtain adequate representation” is to a person inwhose custody the prospective adoptee has beenplaced, not a guardian ad litem, who is always alawyer.

11Id. § 16-304(b)(1).

12Id. § 16-316(b). For a prospective adoptee

“fourteen years of age or older,” whose consent,like that of the birth parents, is required for theadoption to go forward, he or she will have no oneto consult with in evaluating and interpreting thehome study and in deciding whether to consent tothe adoption if the court decides not to appoint aGAL. As we discuss below, an attorney who repre-sents a birth parent does not – and cannot, consis-tent with D.C. Rule 1.7, simultaneously represent aprospective adoptee who is too young to giveinformed consent to joint representation. Addition-ally, we note that except in certain narrowly definedcircumstances, an attorney who represents a birth

Consent and the resulting adoptionhave significant consequences for a con-senting birth parent and an adopteewhose independent consent must beobtained: “A party who formally giveshis consent to the proposed adoption …waives the requirement of notice” of theadoption proceedings in SuperiorCourt;13 and, pursuant to Super. Ct.Adoption Rule 17(a), the consenting per-son is no longer deemed a “party” to theadoption proceedings. Once a personconsents to the adoption, that consent“may be revoked or withdrawn only aftera judicial determination that the consentwas not voluntarily given. The personmoving to revoke or withdraw consenthas the burden to establish that the con-sent was not voluntarily given.”14 Theadoption effects a complete terminationof birth parents’ parental rights.15

As explained above, the law does notrequire the court to provide a prospectiveadoptee with legal representation in a pri-vate adoption proceeding, notwithstand-ing that the consequences of theproceeding are surely no less significantfor the adoptee than for the birth parents,who are statutorily entitled to counsel.Although the proper administration ofadoption proceedings is not a subject onwhich the Committee opines, the Com-mittee recognizes, and discusses morefully in this opinion, that the D.C. Rulesof Professional Conduct constrainlawyers representing other parties in theadoption proceeding from apprising thecourt of adverse information that maypotentially affect the court’s decision ofwhether “the adoption will be in the bestinterest of the prospective adoptee.” Theabsence of a lawyer for the prospectiveadoptee may, in some instances result inthe court’s being unaware of such infor-mation.

The Committee is aware that the lawmandates appointment of a GAL in childneglect proceedings. In Opinion 295, theCommittee noted the Court of Appeals’decision holding that “a child’s GALoccupies a ‘dual role’ as neutral fact-find-

er for the judge and as zealous advocateon behalf of the child’s best interests.”See S.S. v. D.M., 597 A.2d 870, 875(1991).16 Even though a GAL’s precisefunction in a private adoption would dif-fer from that of a GAL in a neglect pro-ceeding, the appointment of a GAL couldassist the court in determining whetherplacement of the prospective adopteewith the petitioner is in the adoptee’s“best interests.”

Discussion

Informed Consent

The concept of “informed consent” iscentral to a number of circumstances thatconfront practitioners in private adoptionmatters.17 Because many ethical issuesthat arise in private adoptions require alawyer to obtain the informed consent ofone or more clients or former clients, it iscritical that lawyers understand the termi-nology. To avoid the possibility of confu-sion in the discussion that follows, wenote at the outset that the “informed con-sent” requirement under the D.C. Rulesof Professional Conduct is wholly dis-tinct from the statutory “consent to adop-tion” required by D.C. Code §16-304(b)(2)(A).18

Rule 1.0(e) states that “‘Informed con-sent’ denotes the agreement by a personto a proposed course of conduct after thelawyer has communicated adequateinformation and explanation about thematerial risks of and reasonably availablealternatives to the proposed course ofconduct.” Comment [2] addresses thecontent of a lawyer’s communication tothe (prospective) client in order to ensurethat the client’s consent to a proposed

arrangement or action is “informed.”

The lawyer must make reasonable

efforts to ensure that the client or other

person possesses information reason-

ably adequate to make an informed deci-

sion. Ordinarily, this will require

communication that includes [1] a dis-

closure of the facts and circumstances

giving rise to the situation, [2] any

explanation reasonably necessary to

inform the client or other person of the

material advantages and disadvantages

of the proposed course of conduct, and

[3] a discussion of the client’s or other

person’s options and alternatives. See

Rule 1.0 Comment [2]

In addition to imposing these affirma-tive obligations of disclosure, explana-tion, and discussion, “[o]btaininginformed consent will usually require anaffirmative response by the client or otherperson.”19 We emphasize that “a lawyermay not assume consent from a client’sor other person’s silence.”20

Finally, the comments to Rule 1.0(e)further explain that “[i]n determiningwhether the information and explanationprovided are reasonably adequate, rele-vant factors include whether the client orother person is experienced in legal mat-ters generally and in making decisions ofthe type involved.” Thus, informationsufficient to allow one person to giveinformed consent may not be sufficientfor another. This opinion discusses thepractical application and requirementsfor obtaining informed consent in thecontext of specific issues that may arisein these types of representations.

Representing Birth Parents When

Legal Fees are Paid by Party Seeking

to Adopt

It is a common practice for the lawyerwho represents the person(s) filing theadoption petition to recommend a lawyeror lawyers to represent either or both ofthe birth parents and for the petitioner to

January 2014 THE DISTRICT OF COLUMBIA BAR 375

parent cannot, in the absence of the informed con-sent of that client, apprise the court of adverseinformation that may potentially affect the court’sdecision whether “the adoption will be in the bestinterest of the prospective adoptee.”

13Id. § 16-306(b). A lawyer who undertakes to

obtain a client’s consent to the adoption mustexplain and ensure the client appreciates the conse-quences of giving that consent. See D.C. Rule1.4(b).

14Super. Ct. Adoption Rule 70(a).

15D.C. Code § 16-312(a).

16D.C. Legal Ethics Opinion 295 (Restriction

on Communications by a Lawyer Acting asGuardian Ad Litem in a Child Abuse and NeglectProceeding) (2000).

17The concept of informed consent is independ-

ent from, and in addition to, a lawyer’s general dutyof communication arising under Rule 1.4. Rule1.4(b) requires that “[a] lawyer shall explain a mat-ter to the extent reasonably necessary to permit theclient to make informed decisions regarding therepresentation.” The comments to Rule 1.4 clarifythat “[t]he lawyer must be particularly careful toensure that decisions of the client are made onlyafter the client has been informed of all relevantconsiderations” and that “[t]he lawyer must initiateand maintain the consultative and decision-makingprocess if the client does not do so and must ensurethat the ongoing process is thorough and com-plete.” See D.C. Rule 1.4 Comments [2] and [3].

18See note 8 and the text accompanying

notes13-15, supra, for a discussion of the consentrequirement and the consequences of giving con-sent to the adoption.

19D.C. Rule 1.0, Comment [3].

20Id. Although Comment [3] to Rule 1.0 notes

that “[a] number of D.C. Rules require that a per-son’s consent be in writing,” neither Rule 1.8(e)(1)nor Rule 1.7(c)(1) requires that a client’s informedconsent be memorialized by a writing. Nonethe-less, this Committee has consistently advised thatan attorney consider memorializing the disclosuresto the client and the client’s informed consent to theattorney’s proposed action even where the D.C.Rules do not require the client’s written consent. Inthis opinion we identify the prudential considera-tions that favor obtaining written consent when rep-resenting a person about to relinquish parentalrights.

pay the fees for the birth parents’lawyer(s). A lawyer who accepts suchreferrals under these conditions mustcomply with Rules 1.8(e) and 5.4(c).

Rule 1.8(e) states:

A lawyer shall not accept compensation

for representing a client from one other

than the client unless: (1) The client

gives informed consent after consulta-

tion; (2) There is no interference with

the lawyer’s independence of profes-

sional judgment or with the client-

lawyer relationship; and (3) Information

relating to representation of a client is

protected as required by D.C. Rule 1.6.

Rule 5.4(c) parallels Rule 1.8(e)(2)and states:

A lawyer shall not permit a person who

recommends, employs, or pays the

lawyer to render legal services for

another to direct or regulate the lawyer’s

professional judgment in rendering such

legal services.

Comment [10] to Rule 1.8 notes that“third-party payers frequently have inter-ests that differ from those of the client,including interests in minimizing theamount spent on the representation and inlearning how the representation is pro-gressing.” Because of this potential dis-parity in interests, “lawyers areprohibited from accepting or continuingsuch representations unless the lawyerdetermines that there will be no interfer-ence with the lawyer’s independent pro-fessional judgment and there is informedconsent from the client.” Rules 1.8(e)(2)and 5.4(c) require that the lawyer not per-mit the adoptive parents (or the attorneyrepresenting the adoptive parents) to“direct or regulate the lawyer’s profes-sional judgment” in advising her birthparent client regarding the adoption orotherwise “interfere” in the relationshipwith the client.

Even when a lawyer is satisfied thatshe can maintain the independent judg-ment required by Rules 1.8(e)(2) and5.4(c), Rule 1.8(e)(1) prohibits accept-ance of fees from a third party unless theclient gives informed consent to thearrangement. Thus, at a minimum“[p]aragraph (e) requires disclosure ofthe fact that the lawyer’s services arebeing paid for by a third party.”21 For aclient’s consent to be “informed,” howev-er, there must be “a discussion of theclient’s ... options and alternatives” andan “explanation ... of material advantagesand disadvantages of the proposed course

of conduct.”22 An indigent birth parentmust be informed that court-appointedcounsel is available under D.C. Code §16-316(a) as an alternative to accepting alawyer whose fees are paid for by theadoptive parents; although the lawyer isfree to fairly state her opinion regardingthe advantages of not having a court-appointed lawyer, the client must be toldthat she has a choice and be providedwith sufficient information to make thatchoice intelligently.

The representation and fee arrange-ment must also conform to the require-ments of Rule 1.7 concerning conflict ofinterest,23 which prohibits representationof a client “if … [t]he lawyer’s profes-sional judgment on behalf of the clientwill be or reasonably may be adverselyaffected by ... the lawyer’s own financial,business, property, or personal inter-ests.”24 Under Rule 1.7(b)(4), a conflictof interest exists if there is a significantrisk that the lawyer’s representation willbe adversely affected by the lawyer’sown interest in the fee arrangement.25

Whether the fee arrangement createssuch a risk is an objective determination:Would an “objective observer” have a“reasonable doubt” that the representa-tion can be “wholeheartedly and zealous-ly” undertaken?26 If such an objectivereasonable doubt exists, a lawyer mustcomply with the waiver and informedconsent mandates of Rule 1.7(c)(1) and(2) before commencing representation.

Finally, Rule 1.8(e)(3) provides that alawyer whose representation of a birthparent will be paid for by the adoptiveparents must comply with the confiden-tiality provisions of Rule 1.6, which pro-hibit a lawyer from “revealing” a client“confidence or secret” and from using aconfidence or secret “to the disadvantageof the client” or “for the advantage of thelawyer or of a third person.”27

Reciprocal Referrals Among Private

Adoption Attorneys

As noted earlier, the Committee under-stands that in private adoption practice,as in a number of other practice areas,

there are informal groups of lawyers whoengage in reciprocal referrals; that is, alawyer who represents the adoptive par-ents in one matter will refer the birth par-ent(s) to a colleague, who mayreciprocate when the roles are reversed.The Committee emphasizes that the D.C.Rules do not prohibit such relationshipsamong lawyers; indeed, the Committeerecognizes that they are inevitable andmay inure to a client’s benefit. Nonethe-less, such relationships can contribute toa “reasonable doubt” in the mind of an“objective observer” whether a lawyer’sfinancial interest in continuing to receivereferrals from colleagues could interferewith the lawyer’s “wholehearted andzealous” representation of a client in theevent that the client takes a position thatis not the one preferred by the client ofthe lawyer who made the referral.

Because one of the principles underly-ing Rules 1.7(b) and (c) is that “the clientas well as the lawyer must have theopportunity to judge and be satisfied that[wholehearted and zealous] representa-tion can be provided,”28 a prudent lawyerwill, in most cases, treat a representationthat stems from a “reciprocal referralrelationship” as raising a conflict underRule 1.7(b)(4) and will disclose “theexistence and nature of the possible con-flict and the possible adverse conse-quences of such representation,”29 so thatthe client can consider the issue and pro-vide the informed consent needed for thelawyer to undertake the representation.

In discussing this matter (and all mat-ters that require the client’s informedconsent to a proposed action) with theprospective client, a lawyer who propos-es to represent a birth parent must con-sider the prospective client’s age(perhaps a minor), sophistication in legalmatters (often minimal), and the stresspresented by the client’s circumstances ofrelinquishing parental rights. The lawyermust tailor the substance and delivery ofthe disclosure to ensure that the clientappreciates the decision she is making.30

376 THE DISTRICT OF COLUMBIA BAR January 2014

21D.C. Rule 1.8, Comment [10].

22D.C. Rule 1.0, Comment [2].

23D.C. Rule 1.8, Comment [10].

24D.C. Rule 1.7(b)(4).

25D.C. Rule 1.8, Comment [11].

26D.C. Rule 1.7, Comment [7].

27D.C. Rule 1.6(a)(1)-(3); D.C. Rule 1.8(e)(3)

and Comment [10].

28D.C. Rule 1.7, Comment 7 (“The client has a

right to disclosure of all relevant considerations andthe opportunity to be the judge of its own interests.”).

29D.C. Rule 1.7(c)(1).

30Comment [11] to D.C. Rule 1.8 recognizes

that in some circumstances, for example, where theprospective client is experienced in obtaining legalservices, disclosure of the “the fact of the paymentand the identity of the third-party payer” may besufficient to satisfy D.C. Rule 1.8(e). However, indealing with a birth parent (particularly one whohas not reached the age of majority) who is about toplace a child for adoption and is unable to afford-counsel, the lawyer should assume that a more

Representation of More than One

Birth Parent

Because the consent of both birth par-ents is required (absent involuntary ter-mination of either’s parental rights), eachmay want legal representation in decid-ing whether to consent to the adoption or,if consent is withheld, in mounting anopposition.31 As we stated in Opinion296, although the D.C. Rules do not pro-hibit joint representation, “[a] necessarypredicate to a decision to undertake jointrepresentation is an initial determinationthat the interests of the joint clients canbe pursued without conflict.”32 We alsocautioned, however, that a lawyer who isconsidering undertaking joint representa-tion must keep in mind that “[n]o matterhow consistent the apparent interests ofclients in a joint representation mayappear at the onset … [joint representa-tion] poses inherent risks of future con-flicts of interest.”33 Moreover, a lawyer“should be mindful that if the commonrepresentation fails because the potential-ly adverse interests cannot be reconciled,the result can be additional cost, embar-rassment and recrimination.”34

Absolute Prohibition of Representa-

tion: Adverse Interests Between Birth

Parents

Turning first to the prohibition in Rule1.7(a) against “advanc[ing] two or more

adverse positions in the same matter,”lawyers must remember that this prohibi-tion prohibits joint representation notonly when there are conflicting opinionsregarding any aspect of the prospectiveadoption but also when the birth parentsseek representation in order to resolvetheir disagreement(s). In Opinion 243,we concluded that Rule 1.7(a) did notpermit “the joint representation of adivorcing husband and wife who seekassistance in resolving their disagreementas to the terms of the dissolution of theirmarriage.” The Committee stated: “Webelieve that such joint representationwould place too great a strain on the fun-damental duty of loyalty to individualclients that undergirds our ethicalrules.”35 Our reasoning in that opinionapplies with equal force to a lawyer’sprospective joint representation of birthparents when the lawyer is aware thatthey have adverse positions on mattersinvolved in the adoption proceeding.

Conditional Prohibition: Informed

Consent to Joint Representation

When birth parents seek joint repre-sentation and there is no such adversity intheir positions regarding the adoption, alawyer must, nonetheless, consult “witheach client concerning the implicationsof the common representation andobtain[] each client’s [informed] con-sent”36 to the joint representation beforeagreeing to undertake it. We take thisopportunity to review relevant provisionsof the D.C. Rules of Professional Con-duct in the context of joint representa-tions to ensure that lawyers’consultations with their prospectiveclients address fully “the implications ofthe common representation” and thatclients who consent to joint representa-tion have been adequately informed ofthe actual and potential consequences ofthe decision.

As we stated in Opinion 296, “[a] jointrepresentation in and of itself does notalter the lawyer’s ethical duties [“of loy-alty and confidentiality,” as well as “theduty to inform”] to each client, includingthe duty to protect each client’s confi-dences.”(emphasis added). That opiniondescribed the “delicate balance” a lawyermust maintain in fulfilling her obliga-tions to each client under both Rule 1.4

(Communication) and Rule 1.6 (Confi-dentiality of Information), and cautionedthat “[i]f the balance cannot be main-tained, the common representation isimproper.”37 We reiterate here this criti-cal point: “In a common representation,the lawyer is still required both to keepeach client adequately informed and tomaintain confidentiality of informationrelating to the representation ….”38

Specifically, Rule 1.4 requires alawyer to “keep a client reasonablyinformed about the status of a matter andpromptly comply with reasonablerequests for information” and to “explaina matter to the extent reasonably neces-sary to permit the client to makeinformed decisions regarding the repre-sentation.”39 This means that “[a] clientis entitled to whatever information theclient wishes about all aspects of the sub-ject matter of the representation unlessthe client expressly consents not to havecertain information passed on.”40 On theother hand, Rule 1.6 requires that alawyer not: “(1) reveal a confidence orsecret of the lawyer’s client; (2) use aconfidence or secret of the lawyer’s clientto the disadvantage of the client; or (3)use a confidence or secret of the lawyer’sclient for the advantage of the lawyer orof a third person.”

Comment [16] to Rule 1.6 addressesthe tension that joint representation cre-ates between a lawyer’s obligation tomaintain client confidentiality and herobligation to keep a client fully informed:

As to the duty of confidentiality, contin-

ued common representation will almost

certainly be inadequate if one client

asks the lawyer not to disclose to the

other client information relevant to the

common representation. This is so

because the lawyer has an equal duty of

loyalty to each client, and each client

has the right to be informed of anything

bearing on the representation that might

affect that client’s interests and the right

to expect that the lawyer will use that

information to that client’s benefit. See

D.C. Rule 1.4 (emphasis added).41

January 2014 THE DISTRICT OF COLUMBIA BAR 377

fulsome explanation of the relationship with thereferring lawyer is required in order to obtain theprospective client’s informed consent to the represen-tation under such circumstances. Cf. D.C. Rule 1.0,Comment [2] (“In determining whether the informa-tion and explanation provided are reasonably ade-quate, relevant factors include whether the client orother person is experienced in legal matters general-ly and in making decisions of the type involved.”).

31With respect to the unwed natural father, if he

“grasps an opportunity … to develop a relationshipwith his offspring … and accepts some measure ofresponsibility for the child’s future,” he has a consti-tutional right to participate in the adoption proceed-ings. Lehr v. Robertson, 463 U.S. 248, 261-62 (1983).

32D.C. Legal Ethics Opinion 296 (Joint Repre-

sentation: Confidentiality of Information )(2000).Although LEO 296 was adopted before the 2007D.C. Rules Amendments, its discussion of “the dif-ficult ethical issues under D.C. Rule 1.7(b)(2) and(b)(3) posed by joint representations of any kind” isunaffected by the subsequent elimination of formerD.C. Rule 2.2, which addressed the lawyer’s role asintermediary, or the amendments to D.C. Rule1.6(d), regarding a lawyer’s revealing a client’sconfidences and secrets “[w]hen a client has usedor is using a lawyer’s services to further a crime orfraud.”

33Id.

34D.C. Rule 1.7, Comment [14].

35D.C. LEO 243.

36D.C. LEO 296, discussing former Rule 2.2.

The joint representation concerns identified in for-mer Rule 2.2 and discussed in LEO 296 are cap-tured in Comments [14]-[18] to Rule 1.7(b).

37D.C. Legal Ethics Opinion 296 (2000).

38Id.

39D.C. Rule 1.4(a) and (b).

40D.C. Rule 1.4, Comment [2] (emphasis

added).

41As the Committee stated in Opinion 327, Rule

1.6(d)(1) permits a lawyer to reveal a client’s con-fidence or secret when the client has providedinformed consent to such disclosure. The Commit-tee went on to point out that “[w]here the disclos-ing client has unambiguously consented to further

378 THE DISTRICT OF COLUMBIA BAR January 2014

In the context of joint representation ofbirth parents,42 the consultation regarding“the implications of the common repre-sentation” must include a discussion ofthe following points. First, the prospec-tive clients must be made aware of therisk that a future disagreement betweenthem could result in the lawyer having towithdraw from both representations, andthat each would have to then find a newlawyer, which in most circumstances willdelay the final resolution of the adoptionproceeding and require additional expen-ditures of their time. Second, the lawyermust ensure that each prospective clientunderstands that “[w]ith regard to theattorney-client privilege, the prevailingD.C. rule is that, as between commonlyrepresented clients, the privilege does notattach.”43 Third, as we said in Opinion327, it is essential that the lawyer “care-fully explain to all clients in a joint repre-sentation that, when they agree that anyrelevant or material information may beshared with one another, they cannotexpect that any relevant or material con-fidential information they may subse-quently reveal to the lawyer will be keptfrom the other co-clients,” and that thelawyer “may have to withdraw from anyor all representations if one client laterobjects to continued common representa-tion or sharing of such information.”44

Lawyers must also advise each clientthat there are alternatives to joint repre-sentation. As noted, separate court-appointed counsel is available for eachindigent birth parent. In addition, theCommittee has been advised that adop-tive parents will often fund separate legalcounsel for each birth parent if requestedto do so. Informed consent requires thatlawyers explain to the prospectiveclient(s) the benefits of separate counsel.This may include explaining that thereare mechanisms available that enableseparate lawyers to share such informa-

tion as each client agrees to share whileprotecting confidences and secrets andmaintaining each person’s attorney-clientprivilege.

Although Rule 1.7 does not impose arequirement that either the lawyer’sexplanations or the client’s decision con-cerning joint representation be in writing,the Committee noted in Opinion 296 thatformer Rule 2.2 imposed a writingrequirement and the reasons for therequirement:

Comment [2] to Rule 2.2 underscores

that the explanation of risks and consent

must be in writing because “the poten-

tial for confusion is so great.” A written

explanation requires the lawyer to

“focus specifically on those risks” and

educates the client to “risks that many

clients may not otherwise compre-

hend.”45

After pointing out that the reasons forthe writing requirement in Rule 2.2applied equally to “joint representationsof any kind,” we concluded:

The best practice is clearly to advise

clients at the outset of a representation

of the potential for ethical conflicts

ahead. Written disclosure of potential

effects of joint representation and writ-

ten consent can substantially mitigate, if

not eliminate, the ethical tensions inher-

ent in common representation.46

Communication with an Unrepresent-

ed Birth Parent

The Committee has been advised thatlawyers who practice adoption law con-front with some regularity two circum-stances that involve communication withan unrepresented person. We understandthat it is not uncommon for a birth moth-er to decline the opportunity to consultwith an attorney before executing thestatutory consent form that terminates herparental rights.47 Because someone has toobtain the executed form for the adoption

to proceed, the Committee understandsthat the task of obtaining the requisiteconsent often falls to the attorney whorepresents the prospective adoptive par-ents. Another situation that arisesinvolves communications between anunrepresented birth parent and a lawyerwho represents one of the other parties,usually the lawyer who represents theother birth parent.

Both scenarios are governed by Rule4.3 (Communication with an Unrepre-sented Person). Rule 4.3(a)(1) prohibits“giving advice to the unrepresented per-son other than the advice to secure coun-sel, if the interests of such person are orhave a reasonable possibility of being inconflict with the interests of the lawyer’sclient” (emphasis added). In addition,Rule 4.3(a)(2) provides that a lawyer maynot “state or imply to unrepresented per-sons whose interests are not in conflictwith the interests of the lawyer’s clientthat the lawyer is disinterested.”

Although an adoptive parent’s lawyertasked with obtaining an unrepresentedbirth parent’s consent to the adoption maysubjectively believe that there is no con-flict between the interests of the unrepre-sented birth parent and the lawyer’sclient, obtaining a birth parent’s formalconsent is the essential step in a proceed-ing that will result, if the court grants theadoption petition, in the transfer ofparental rights from the unrepresentedbirth parent to the lawyer’s client(s).Under these circumstances, a prudentlawyer will treat the birth parent as some-one whose interests “are or have a reason-able possibility of being in conflict withthe interests of the lawyer’s client.”

Therefore, the lawyer must make clearthat she represents the prospective adop-tive parent(s), that the lawyer’s role is toassist the adoptive parent(s) in adoptingthe birth parent’s child, and that the pur-pose of her communicating with the birthparent is to obtain the birth parent’s con-sent to the adoption, which, if granted,will terminate the birth parent’s parentalrights. We emphasize that when thelawyer who represents the adoptive par-ent(s) is meeting with an unrepresentedbirth parent for this purpose, the lawyermay not advise the unrepresented birthparent on any matter. If the birth parentposes a question that requires other thanan objective answer (e.g., what happensnext, who is the judge assigned to thematter), the adoptive parents’ lawyermust limit her response to advising thebirth parent that he or she may want totalk with a lawyer and the availableoptions for obtaining one.

disclosure [of a confidence or secret otherwise pro-tected by Rule 1.6], a lawyer’s duty of loyalty toand the duty to communicate with the non-disclos-ing client tips the balance in favor of disclosure.Indeed, in light of the disclosing client’s consent,there is nothing left on the other side of the bal-ance.”

42As we noted previously in the discussion of

the required disclosures concerning payment offees by third parties (see notes 22-31 and accompa-nying text, supra), the substance of the disclosureswill vary depending upon the context of the repre-sentation, the ages of the prospective clients, andtheir experience and sophistication in legal matters.

43D.C. Rule 1.7, Comment [15].

44D.C. Rule 1.7, Comment [16].

45D.C. LEO 296, quoting former D.C. Rule 2.2,

Comment [2].

46Id.

47While we have not received similar informa-

tion regarding birth fathers, we will assume thatthere is some percentage of them who take thesame position. As we noted previously, supra note13, once a birth parent executes a formal consent toadoption, that person is no longer a “party” to theadoption proceedings and waives notice of futureproceedings. Thus, a birth parent who declines theopportunity to consult with counsel prior to formal-ly consenting to the adoption is effectively waivingthe right to have legal representation in connectionwith the adoption.

In the second scenario, in which alawyer who represents one birth parent iscommunicating with the other, unrepre-sented birth parent, if the purpose of thecommunication is to obtain the consentof the unrepresented birth parent to theadoption, our previous analysis leads tothe same result: A lawyer is limited toidentifying herself, identifying her client,and stating the reason for the communi-cation. The lawyer may not counsel theunrepresented birth parent on the wisdomof giving consent, may answer questionsonly of the type described above, and, inresponse to other questions, must limither response to advising the birth parentthat he or she may want to talk with alawyer and the available options forobtaining one. If the communication isfor any purpose other than obtaining theunrepresented person’s consent to theadoption, and if the lawyer has no reasonto believe that the birth parents haveadverse interests or positions in regard tothe adoption, there is arguably greaterleeway for the lawyer to conclude thatthe unrepresented parent’s interests donot conflict with those of the lawyer’sclient. However, the prudent practice isfor the lawyer to limit her “advice” to asuggestion that the unrepresented personmay wish to obtain counsel.

Separate Representation of Prospec-

tive Adoptee

A lawyer who represents a birth parentdoes not and cannot also represent theprospective adoptee. Because the inter-ests of a birth parent and the prospectiveadoptee could differ with respect to mate-rial matters, for example, the relevance ofinformation pertaining to the suitabilityof the adoptive parents or another issuethat may affect whether the adoption is inthe prospective adoptee’s best interest,joint representation raises a conflictunder Rules 1.7(b)(2), (3) and (4) which,under Rule 1.7(c)(1), would require eachclient’s informed consent before theattorney could undertake the joint repre-sentation. When the prospective adopteeis a newborn or very young child, obtain-ing such informed consent is, of course, apractical impossibility.

Furthermore, when the potential jointrepresentation involves a birth parentand an unrepresented minor adoptee ofany age, the inherent uncertainty ofwhether the prospective adoptee has vol-untarily given her informed consent tothe joint representation as well as theconcerns discussed herein with respectto the joint representation of birth par-

ents,48 which are particularly acute inthis context, make joint representation ofa birth parent and a prospective adopteerarely, if ever, permissible.

Duty of Confidentiality Revisited

A lawyer who represents a birth parentor an adoptive parent may fundamentallydisagree with the client on whether cer-tain information potentially relevant tothe court’s “best interests of the prospec-tive adoptee” mandate should be broughtto the court’s attention. However, absenta circumstance that gives rise to one ofthe limited exceptions under Rule 1.6, alawyer representing a party in an adop-tion may not apprise the court of infor-mation that the lawyer believes isrelevant to the court’s approval of thepetition without first obtaining informedconsent from his or her client.

As discussed extensively above, alawyer has duties of confidentiality underRule 1.6 that would prohibit a lawyer’svoluntary use or revelation of client con-fidences or secrets except in narrowlydefined circumstances.49 Rule 1.6(b)very broadly defines “confidence” as“information protected by the attorney-client privilege under applicable law,”and “secret” as “other information gainedin the professional relationship that theclient has requested be held inviolate, orthe disclosure of which would be embar-rassing, or would be likely to be detri-mental, to the client.”

As such, if a lawyer becomes aware ofinformation that may cause the lawyer, butnot the lawyer’s client, to questionwhether the prospective adoption is “in thebest interest of the prospective adoptee,”duties of confidentiality will typicallyforeclose the lawyer’s bringing that infor-mation to the court, as such information isclearly a client “secret.”50 The lawyermust abide by the client’s decision regard-less of the lawyer’s disagreement. Howev-er, in a particularly unpalatablecircumstance, a lawyer may seek to with-draw from the representation, but only ifthat can be done without “material adverseeffect on the interests of the client,” or ifother another independent reason to with-draw exists under Rule 1.16.

Representing a Client in an Adoption

Opposite a Former Client from a Pre-

vious Adoption

The Committee is informed thatlawyers for whom adoption law is a pri-mary or exclusive practice area are some-times on the opposite side of an adoptionproceeding from a former client in a pre-vious adoption that did not involve thelawyer’s current client. This situation isgoverned by Rule 1.9, which states:

A lawyer who has formerly represented

a client in a matter shall not thereafter

represent another person in the same or

a substantially related matter in which

that person’s interests are materially

adverse to the interests of the former

client unless the former client gives

informed consent.

“Matters are ‘substantially related’ forpurposes of this D.C. Rule if they involvethe same transaction or legal dispute or ifthere otherwise is a substantial risk that con-fidential factual information as would nor-mally have been obtained in the priorrepresentation would materially advance theclient’s position in the subsequent matter.”51

It would be difficult to conceive of anadoption proceeding in which an attorneydid not obtain “confidential factual infor-mation” about his client; in manyinstances, there is a substantial risk thatsuch information could “materiallyadvance” the position of the lawyer’snew adoption client.52 Therefore, Rule1.9 requires informed consent of the for-mer client to the subsequent representa-tion if the interests of the former and thecurrent client are “materially adverse.”

Prudence suggests, however, that evenwhen the interests of the former and cur-rent clients cannot reasonably be deemed“materially adverse,” – that is, for exam-ple, both persons are on record independ-ently as in favor the court’s granting theadoption petition in the latter proceeding

January 2014 THE DISTRICT OF COLUMBIA BAR 379

48See notes 31-46 and accompanying text.

49See D.C. Rule 1.6 (a).

50See note 12, supra, in which the Committee

notes its concerns when there is no GAL appointedto represent a prospective adoptee. Presumably, inthis circumstance the court engages in particularlyclose questioning of the agency that has evaluatedthe suitability of the prospective adoptive parents.

51D.C. Rule 1.9, Comment [3] (emphasis

added).

52For example, a lawyer who previously repre-

sented the birth mother may have learned informa-tion about personal habits of the former client ofwhich the new client (the adoptive parents) areunaware that could adversely affect the healthydevelopment of the prospective adoptee, andwhich, if known, could cause the adoptive parentsto withdraw the adoption petition. On the otherhand, a lawyer who represents a birth parent andhas represented the prospective adoptive parents ina previous adoption (or any matter in which she haslearned confidential information) may have learnedinformation about that party’s financial situation orhome life that might be relevant to the new client’sassessment of the petitioner’s suitability.

– a lawyer will obtain the former client’sinformed consent before agreeing to rep-resent a person on the other side of thesubsequent proceeding.

In Opinion 309, the Committee con-sidered “whether advance waivers ofconflicts of interest are permissible and,if so, whether there are requirements forsuch waivers additional to, or differentfrom, those prescribed by Rules 1.7 and1.9 for waivers generally.” Only onesmall portion of Opinion 309—a foot-note—is relevant to the instant discus-sion. In the footnote, the Committee wascareful to distinguish between a waiverof conflict of interest for purposes of rep-resentation and a waiver of confidentiali-ty by the former client:

Waivers permitting the adverse use or

disclosure of confidential

information, see D.C. Rule 1.6(c)-(d),

may not be implied from waivers of con-

flicts of interest. Because of their con-

siderable potential for mischief, waivers

of confidentiality require particular

scrutiny and may be invalid even when

granted by sophisticated clients with

counsel (in-house or outside) independ-

ent of the lawyer seeking the waiver.53

Accordingly, a former client’s “cur-rent” waiver of a representational conflictunder Rule 1.9 does not permit a lawyerto disclose or use for the benefit of thecurrent client confidential informationobtained about the former client duringthe former representation. Moreover, asnoted in Opinion 309, any separate waiv-er by the former client of confidentialityunder Rule 1.6 would be subject to “par-ticular scrutiny” and might be found to beinvalid. Accordingly, it may not be possi-ble for the attorney to obtain an effectivewaiver of confidentiality from the formerclient that would permit the attorney tomake use of the former client’s confiden-tial information to advance the position ofthe attorney’s new adoption client.

If that confidential information weresuch that the current client would reason-ably be entitled to know it under Rule 1.4and have her lawyer use it in fulfilling thelawyer’s obligations of diligence and zealto the current client under Rule 1.3, thelawyer would need to obtain the currentclient’s informed consent to having theinformation withheld. But if the lawyer isunable to disclose to the current client theformer client’s confidential information,the lawyer will likely be unable to obtainthe current client’s informed consent to the

lawyer not using or revealing the informa-tion. See Comment [27] to Rule 1.7(b) (“Ifa lawyer’s obligation to one or anotherclient or to others or some other consider-ation precludes making such full disclo-sure to all affected parties, that fact aloneprecludes undertaking the representationat issue.”). Accordingly, prudence sug-gests that a lawyer should be extremelycautious in considering whether to under-take to represent a new client in a privateadoption adverse to a former client.54

Conclusion

Lawyers engaged in private adoptionsmust ensure that they adhere to the man-dates of the D.C. Rules, specifically thosegoverning conflicts of interest, and thatthey make sufficient disclosures andexplanations to obtain prospectiveclient(s)’ informed consent where therules make that a prerequisite to under-taking a representation.

A lawyer for a birth parent may acceptpayment of legal fees from the adoptiveparent(s) only after disclosing informa-tion – including information about anyreciprocal referral relationship with theadoptive parents’ lawyer – necessary toobtain the informed consent for thisarrangement from the lawyer’s client.Furthermore, a lawyer who accepts feesfrom the adoptive parents for representa-tion of a birth parent must ensure that thefee arrangement does not affect her inde-pendent judgment in the representation ofthe client and must not disclose the con-fidences and secrets of her client withoutthe informed consent of her client.

A lawyer may not represent both birthparents when the lawyer is aware at theoutset that they differ in their positions inregard to the proposed adoption; nor may alawyer engage in such joint representationfor the purpose of helping birth parents toresolve any such disagreement. In circum-stances in which the birth parents agreethat the adoption petition should be grant-ed, a lawyer must consider that there is aninherent tension that arises in a joint repre-sentation in fulfilling her obligations underboth Rule 1.4 and Rule 1.6; she mustexplain these obligations and the potentialconsequences should differences betweenthe clients’ respective positions later arise;and she must obtain each client’s informedconsent to the joint representation.

A lawyer who represents only onebirth parent may not give legal advice to

the other birth parent. Likewise, a lawyerwho represents the adoptive parents andis charged with obtaining the consent toadoption from an unrepresented birthparent may not give legal advice to thatbirth parent. In both circumstances, if theunrepresented person poses questions tothe lawyer, the lawyer should restrict heradvice to a recommendation to obtaincounsel and the potential mechanisms foraccomplishing this.

A lawyer who seeks to obtain a birthparent-client’s written consent to theadoption must ensure that the clientunderstands the consequences of suchconsent, including that it terminates boththe client’s involvement in the adoptionproceedings and the client’s parentalrights. A lawyer who represents a birthparent does not and cannot jointly repre-sent the prospective adoptee.55

Except in rare circumstances where anexception to Rule 1.6 applies, a lawyermust obtain the client’s informed consentbefore disclosing to the court informationobtained in the course of the representa-tion that could contribute to the court’sdeciding that the adoption is not “in thebest interests of the prospective adoptee.”If the client declines to permit such dis-closure, the lawyer must abide by theclient’s decision.

A lawyer who has represented either abirth parent or an adoptive parent in anadoption proceeding may represent a dif-ferent, adverse client in a subsequent adop-tion proceeding involving the former clientonly if the lawyer obtains the informedconsent of the former client to the subse-quent representation. Because the waiverof conflicts of interest would not constitutea waiver of the former client’s confiden-tiality protections under Rule 1.6, and con-sidering the potential risks to the lawyer’sability to meet obligations that might ariseunder Rules 1.3 and 1.4 to the new client,prudence suggests that a lawyer should beextremely cautious in considering whetherto undertake to represent a party in a pri-vate adoption in which a former clientfrom a previous private adoption is on theother side.

Published January 2014

380 THE DISTRICT OF COLUMBIA BAR January 2014

53D.C. Legal Ethics Opinion 309 (Advanced

Waivers of Conflict of Interest)(2001), note 10(citations omitted; emphasis added).

54A lawyer asked by the court to serve as a GAL

for a prospective adoptee in a proceeding involvinga former client should be disinclined to accept suchan appointment for the same reasons.

55As we have observed, because there is no

entitlement to legal representation by an adoptee ina private adoption proceeding, it is this Commit-tee’s understanding that unless a lawyer or GAL isappointed by the court, there is no one chargedspecifically with advocating on behalf of theadoptee. In those circumstances, the court’s deter-mination about whether the adoption is in the bestinterests of the child will be based on the homestudy of the independent agency, and any other evi-dence that may be introduced.

Opinion 367

Representation of Client by Lawyer

Seeking Employment with Entity or

Person Adverse to Client, or Adver-

sary’s Lawyer; Clarification of Opin-

ion 210

When a lawyer is seeking employmentwith an entity or person adverse to hisclient,1 or with the adversary’s lawyer, aconflict of interest may arise under Rule1.7(b)(4) if the lawyer’s professionaljudgment on behalf of the client will be,or reasonably may be, adversely affectedby the lawyer’s own financial, business,property, or personal interests (for pur-poses of this Opinion, a lawyer’s ownfinancial, business, property, or personalinterests are collectively referred to as a“personal interest conflict”). Both sub-jective and objective tests must beapplied to determine whether a personalinterest conflict exists.

There is no “bright line” test for deter-mining the point during the employmentprocess when a personal interest conflictarises, and that point may vary. There area number of factors to consider in deter-mining whether a personal interest con-flict exists, including whether theindividual lawyer is materially andactively involved in representing theclient and, if so, whether the lawyer’sinterest in the prospective employer istargeted and specific, and/or has beencommunicated to, and reciprocated by,the prospective employer.

Where the prospective employer isaffiliated with, but separate and distinctfrom, the entity adverse to the job-seek-ing lawyer’s client, there may be no per-sonal interest conflict in the first instance,because the adversary and the prospec-tive employer may be separate entitiesfor conflicts purposes.

If a personal interest conflict arises,there are three possible courses of actionthat may be available to the individuallawyer, each of which is subject to appli-cable requirements of the D.C. Rules ofProfessional Conduct: (a) disclosing tothe client the existence and nature of thepersonal interest conflict and the possi-ble adverse consequences of the lawyer’s

representation of the client and obtainingthe client’s informed consent to the rep-resentation; (b) withdrawing from therepresentation; or, (c) discontinuingseeking employment with the client’sadversary or the adversary’s lawyer untilall pending matters relating to thatpotential new employment have beencompleted.

The personal interest conflict of anindividual lawyer in a law firm, nonprof-it, or corporate legal department is notimputed to the other lawyers in the lawfirm, nonprofit, or corporate legal depart-ment, so long as the personal interestconflict does not present a significant riskof adversely affecting the representationof the client by such other lawyers. Theimputation rule does not apply to a gov-ernment agency.

A subordinate lawyer who discusses apotential personal interest conflict withhis supervisory lawyer, and acts in accor-dance with the supervisory lawyer’s rea-sonable determination of whether thesubordinate lawyer has a personal inter-est conflict and follows the supervisorylawyer’s recommended course of action,will not be held professionally responsi-ble even if it is subsequently determinedthat the supervisory lawyer’s determina-tion of whether there was a personalinterest conflict, and/or the recommend-ed course of action, were incorrect underthe Rules.

Applicable Rules

• Rule 1.0(c) – Terminology• Rule 1.3 – Diligence and Zeal• Rule 1.4 - Communication• Rule 1.6 - Confidentiality of

Information• Rule 1.7 - Conflict of Interest:

General• Rule 1.10 - Imputed Disqualification:

General Rule• Rule 1.16 - Declining or Terminating

Representation• Rule 5.1 - Responsibilities of Part-

ners, Managers, and SupervisoryLawyers

• Rule 5.2 - Subordinate Lawyers

Inquiries

The Committee has received numerousinquiries with respect to the ethicalrequirements applicable to a lawyer seek-ing employment with an entity or personadverse to his client, or with the adver-sary’s lawyer. Prospective employers mayinclude a law firm, a government agency,a nonprofit, or a corporate legal depart-ment. Specifically, these inquiries seek

guidance on when a personal interest con-flict arises in the employment process and,if a personal interest conflict arises, thecourses of action available to the lawyer.

Background

In D.C. Legal Ethics Committee Opin-ion 210 (“Representation of CriminalDefendants by Attorney Seeking Positionas Assistant U.S. Attorney”) (1990), theCommittee concluded that a lawyer whois primarily employed in criminaldefense work against the U.S. Attorney’sOffice for the District of Columbia(“USAO-DC”) may continue to representcriminal defense clients, and accept newcriminal defense clients, while seeking aposition with the USAO-DC, only if eachof her criminal defense clients consentsto the representation notwithstanding theconflict of interest with full disclosure ofthe possible disadvantages that mayresult if the lawyer must withdraw to startemployment with the USAO-DC.2 TheOpinion concluded that a lawyer shoulddisclose the prospective employment tothe client and obtain the client’s consentwhen the lawyer takes the “first activestep” in seeking such employment.3

Opinion 210 states that this “first activestep” may occur when the lawyer calls todiscuss or inquire about procedures forsubmitting an application, and certainlyoccurs when the lawyer submits aresume.4

The Committee affirms Opinion 210on its particular facts. Since Opinion 210was issued, however, the legal market-place has become increasingly mobile,with lawyers at every experience levelfrequently migrating among governmentagencies, law firms, nonprofits, and cor-porate legal departments. Concomitantly,the inquiries the Committee has receivedin the 24 years since Opinion 210 wasissued have presented a variety of factualscenarios not contemplated by Opinion210. Accordingly, the Committee believes

July 2014 THE DISTRICT OF COLUMBIA BAR 381

1The terms “adverse” and “adversary” are not

intended to be limiting. A personal interest conflictcould arise even if the prospective employer is not“adverse” in the strict legal sense. In other words,a lawyer seeking employment with a co-plaintiff orco-defendant, or any entity in a similar position ina transactional matter, or with a lawyer represent-ing such co-plaintiff, co-defendant or entity mayhave a personal interest conflict.

2Opinion 210 was decided under DR 5-101(A),

whose substance now is contained in Rule 1.7, andDR 7-101(A), whose substance now is contained inRule 1.3.

3The conflict of interest issues discussed in

Opinion 210 also raise issues regarding the consti-tutional right of a defendant to the effective assis-tance of counsel. Those issues, however, arebeyond the scope of this Opinion.

4Four members of the Committee concurred in

Opinion 210, but emphasized the narrow reach ofthe Opinion and stated that in other circumstancesthe lawyer should withhold or delay the employ-ment application altogether until the conflict isremoved.

Opinion 210 might be applied in an over-ly broad manner to factual scenarios thatare distinguishable from the scenario pre-sented therein and thus believes that aclarification of Opinion 210 is in order.

Analysis

In clarifying Opinion 210, a number ofquestions arise:

(1) When does a personal interest con-flict arise for an individual lawyer seek-ing employment with an entity or personadverse to the lawyer’s client, or with theadversary’s lawyer?

(2) If the prospective employer is affil-iated with or related to, but separate anddistinct from, the entity adverse to thelawyer’s client, is there a personal inter-est conflict?

(3) If a personal interest conflict arises,what are the lawyer’s possible courses ofaction?

(4) If an individual lawyer has a per-sonal interest conflict, is that personalinterest conflict imputed to the otherlawyers in his law firm, governmentagency, nonprofit, or corporate legaldepartment?

(5) What are the ethical duties of a sub-ordinate lawyer and a supervisory lawyerin a law firm, nonprofit, corporate legaldepartment, or government agency whenthe subordinate lawyer has a potentialpersonal interest conflict?

We emphasize that this Opinionaddresses only the potential conflicts thatarise during the period of time while thelawyer remains in his current employ-ment and is pursuing possible newemployment. Additional considerationsneed to be addressed to determinewhether the individual lawyer mayaccept the new employment and beginwork at the new employer; in some casesthe lawyer may be precluded from doingso if the lawyer cannot obtain consentsfrom the affected clients. See, e.g., Rules1.6, 1.9, 1.10(b), 1.11; Opinions 273,312.

Discussion

(1) When Does a Personal Interest

Conflict Arise During the Employment

Process?

Rule 1.7(b)(4) provides that a personalinterest conflict arises when:

“the lawyer’s professional judgment on

behalf of the client will be or reasonably

may be adversely affected by the

lawyer’s responsibilities to or interest in

a third party or the lawyer’s own finan-

cial, business, property, or professional

interest.” [Emphasis supplied.]

The disjunctive phrase emphasizedabove suggests that a personal interestconflict arises even if the lawyer’s judg-ment will not be adversely affected, if thelawyer’s judgment reasonably may beadversely affected. Comment [11] toRule 1.7 cites Opinion 210 and states“when a lawyer has discussions concern-ing possible employment with an oppo-nent of the lawyer’s client, or with a lawfirm representing the opponent, such dis-cussion could5 adversely affect thelawyer’s representation of the client.”[Emphasis supplied.]

There are two tests under Rule1.7(b)(4) for determining whether thelawyer’s professional judgment mightreasonably be adversely affected in thecontext of a lawyer’s seeking employ-ment with an entity or person adverse tothe lawyer’s client, or the adversary’slawyer: (a) the lawyer’s subjective per-ception of whether a conflict of interestmay exist, and (b) an objective observer’sperception of whether a conflict of inter-est may exist.

(a) Subjective Test

Opinion 210 states that the lawyer’sown subjective perception of the relation-ship between his personal interest and theclient’s interest determines whether apersonal interest conflict exists. Thelawyer must ask himself a number ofquestions. Would he be tempted to “pullpunches” in representing the client toenhance his prospects with, or at least notjeopardize his chances with, the prospec-tive employer? Would the lawyer’sactions in the matter have an impact onthe prospective employer’s decision tohire him? Would the outcome of the mat-ter have an effect on any compensation orother benefits the lawyer would receivefrom the prospective employer? Thelawyer might ask himself these and anynumber of other questions, dependingupon the facts of the particular search foremployment. If the answer to any ofthese questions is “yes,” the lawyer’ssubjective determination that his profes-sional judgment on behalf of the clientwill be, or reasonably may be, adversely

affected, gives rise to a personal interestconflict.

(b) Objective Test

In addition to the subjective test, Rule1.7(b)(4) contains an objective test:whether the lawyer’s professional judg-ment on behalf of the client “reasonablymay be adversely affected” by thelawyer’s personal interest. Comment [7]to Rule 1.7 provides that, even if thelawyer believes that the representationcan be wholeheartedly and zealouslyundertaken, if an objective observerwould have reasonable doubt on thatissue, the client has a right to disclosureof all relevant considerations and theopportunity to be the judge of its owninterests. The underlying premise is thatif there is reason to doubt the lawyer’sability to provide the client with whole-hearted and zealous representation, thelawyer must disclose the possible conflictto his client and obtain the client’sinformed consent to the lawyer’s repre-sentation notwithstanding the conflict ofinterest. Thus, even if the lawyer deter-mines that his own personal interests inobtaining employment will not impair hiszealous representation of the client, if anobjective observer reasonably woulddoubt that determination, then the lawyermust disclose the possible conflict to theclient [Opinion 210] and obtain theclient’s consent to the continued repre-sentation notwithstanding the personalinterest conflict.

(c) Existence of Personal Interest Con-flict

Whether a personal interest conflictexists typically will depend upon the spe-cific facts. A lawyer may be activelyinvolved in a matter and interact regular-ly with the adversary or the adversary’slawyer, or the lawyer may work behindthe scenes and have no contact with theadversary or the adversary’s lawyer. Alawyer may make cold calls to multipleprospective employers, or blanket multi-ple prospective employers with form let-ters and resumes, without a specifictarget in mind. The lawyer may consult alegal recruiting firm that takes similaraction. These prospective employers mayor may not include an entity adverse tothe lawyer’s client, or the adversary’slawyer. The prospective employers,including the adverse entity or its lawyer,may or may not respond, or may respondthat they are not interested in pursuingemployment with the lawyer. Converse-

382 THE DISTRICT OF COLUMBIA BAR July 2014

5We reject the view that any step towards

changing employment by a lawyer ipso factoadversely affects the client. For example, simplycontemplating alternative employment would notconstitute a personal interest conflict.

ly, a prospective employer, including theadverse entity or its lawyer, may seek outthe lawyer, and the lawyer may or maynot respond, or may respond that he is notinterested in pursuing employment withthe prospective employer. The lawyer’sresume may be sent to government agen-cies, corporate legal departments, or non-profits that are affiliated with, butseparate and distinct from, the client’sadversary.

Accordingly, the Committee believesthat a nuanced test for determining theexistence of a personal interest conflict isappropriate. Although we appreciate thedesirability of a “bright line” test fordetermining the existence of a personalinterest conflict, no such test can ade-quately accommodate all of the scenariosthat might arise. The key question iswhether the lawyer’s professional judg-ment on behalf of the client will be, orreasonably may be, adversely affected.We set forth below two criteria to consid-er in determining whether a personalinterest conflict exists when a lawyer isseeking employment with an entity orperson adverse to his client, or the adver-sary’s lawyer. If the first criterion (mate-rial and active role in representing theclient) is met, then the lawyer shouldconsider the second criterion (targeted,communicated and reciprocated interest)as well.

(i) The Lawyer’s Role in Represen tingthe Client

The first criterion in determiningwhether a lawyer has a personal interestconflict in seeking employment with anentity or person adverse to his client, orthe adversary’s lawyer, is whether thelawyer has a material and active role inrepresenting the client.

Factors to consider in determiningwhether the lawyer has a “material” rolein the matter include whether the lawyerhas contact with the client regarding thematter, has contact with the adversary orthe adversary’s lawyer in the course ofrepresenting the client in the matter,and/or is working on the substance of thematter. If none of these factors is present,the lawyer’s role in the matter wouldlikely not be material, and his profession-al judgment on behalf of the client wouldlikely not be adversely affected such thata personal interest conflict would arise.In that case, the lawyer would not have toconsider the extent to which his interestin the adversary or the adversary’s lawyeris targeted, communicated and/or recip-rocated under (ii), below, because his

non-material role in the matter would notgive rise to a personal interest conflict.

If any of these factors is present, thelawyer’s role in the matter would likelybe material, and his professional judg-ment on behalf of the client would likelybe adversely affected such that a person-al interest conflict likely would arise, ifthe lawyer continues to have an activerole in the matter. In that case, the lawyerwould have to consider the extent towhich his interest in the adversary or theadversary’s lawyer is targeted, communi-cated and/or reciprocated under (ii),below, because his material role in thematter likely would give rise to a person-al interest conflict.

For purposes of this analysis, a lawyershould generally be considered to havean active role in a matter if the matterremains pending and the lawyer is eithercurrently working on the matter orexpects to be undertaking work on thematter in the future. If a matter has con-cluded and has been closed by the firmwith notice to the client, then no firmlawyer who worked on the matter wouldbe considered to have an active role atthat time. In addition, a lawyer whoworked on a discrete part of a matter thatremains pending, but whose work is con-cluded with no expectation of futurework on the matter, would no longer beconsidered to have an active role. Forexample, the lawyer may have had a lim-ited role in one part of a transaction,which part is now concluded, althoughother lawyers in the firm are continuingto represent the client in other parts of thetransaction.

On the other hand, if a pending matteris currently dormant, a lawyer whoexpects to work on the matter whenaction is required in the future wouldlikely be considered to have an activerole in the matter. For example, a casemay have been fully litigated and await-ing the decision of the trial court;although there is no current action to betaken in the matter, a lawyer wouldnonetheless likely be considered to havea current active role in the case if thelawyer expects to be involved in action tobe taken in the future, such as a possibleappeal of the court’s decision. Undersuch circumstances, in our view thelawyer’s professional judgment on behalfof the client could be, both subjectivelyand objectively judged,6 adversely affect-ed by the pursuit of employment with an

adversary or the adversary’s counsel.This is particularly so where the lawyerhas no control over the timing of events(such as a trial court decision) that mayrequire the lawyer’s immediate attentionwhen they occur.

In that regard, we differ with FormalOpinion 96-400 (1996) (“Job Negotia-tions with Adverse Firm or Party”)(“ABA Opinion 96-400”),7 in which theAmerican Bar Association StandingCommittee on Ethics and ProfessionalResponsibility (the “ABA Committee”)considered the nature and extent of thelawyer’s role in representing the client.The ABA Committee concluded that if acase has been fully litigated, and thelawyer is just awaiting the decision of theappellate court and presently has noaction to take or consider, there would beno personal interest conflict unless anduntil a point comes when the lawyershould consider some further action onthe client’s behalf. We depart from ABAOpinion 96-400 in concluding that alawyer’s involvement in a pending butcurrently dormant matter may give rise toa personal interest conflict. Again, the sit-uations in which a lawyer may have apersonal interest conflict in seekingemployment with an adversary or anadversary’s lawyer are not amenable to a“bright line” test.

(ii) Extent to which Lawyer’s Interest inAdversary or Adversary’s Lawyer is Tar-geted, Communicated and/or Reciprocated

Assuming a lawyer has a material andactive role in a matter, the second criteri-on in determining whether a lawyer has apersonal interest conflict in seekingemployment with an entity or personadverse to his client, or the adversary’slawyer, is the extent to which thelawyer’s interest in the prospectiveemployer is targeted, communicatedand/or reciprocated. See ABA Opinion96-400 (opining that one of the factors indetermining whether a personal interestconflict exists is the extent to which thelawyer’s interest in the prospectiveemployer is concrete, and has been com-municated and reciprocated).

In Formal Opinion 1991-1 (1991)(“Refusing Employment When the Inter-ests of the Lawyer may Impair Independ-ent Professional Judgment”) (“NYCBA

July 2014 THE DISTRICT OF COLUMBIA BAR 383

6We reiterate that both the subjective and objec-

tive tests under Rule 1.7(b)(4) discussed aboveapply to these determinations.

7In its July 2011 newsletter, the ABA noted that

ABA Opinion 96-400 was issued prior to the 2002amendments to the Model Rules, including Rule1.7 and Rule 1.10. Comment [10] to Model Rule1.7, one of the 2002 amendments, is in effect a cod-ification of ABA Opinion 96-400.

Opinion 1991-1”) the New York City BarAssociation Committee on Professionaland Judicial Ethics (the “NYCBA Com-mittee”) focused on these criteria in con-sidering when a personal interest conflictexists when a lawyer is seeking employ-ment with an entity or person adverse tohis client or the adversary’s lawyer. TheNYCBA Committee concluded that thiswould occur —

in any case no later than when an offer

of conflicting employment is extended

to the lawyer, which offer is not

promptly declined. Therefore, disclo-

sure would always be necessary at least

where an offer of future employment is

outstanding and being considered (or

has been accepted). This rule, however,

is not sufficient. Although disclosure at

the point an offer is extended would

protect against certain of the types of

conflicts identified above, it is not suf-

ficient as to others. In particular, it does

not deal at all with the potential con-

flicting influences that may arise in

connection with the process of securing

the offer of employment. Therefore, the

Committee notes that, in many cases,

the disclosure obligations may arise as

soon as the lawyer either (i) has taken

clear affirmative steps to seek to obtain

specific conflicting employment (e.g.,

applied for such a position) or (ii) is

seriously considering the pursuit of

such employment in response to some

expression of interest by the potential

employer.

The NYCBA Committee was not pre-pared, however, to opine that in all casesa personal interest conflict would arise atthese earlier identified points in theprocess. Neither is this Committee.

In our view, a personal interest conflictmay arise at various points during theemployment process. Assuming a lawyerhas a material and active role in a matter,a personal interest conflict may arisewhen the lawyer’s interest in the prospec-tive employer, both subjectively andobjectively judged,8 is targeted and spe-cific, and has been communicated to theprospective employer, such as when alawyer sends a targeted resume directlyto an entity or person adverse to his clientor the adversary’s lawyer.9 In another sit-uation, where a lawyer sends blanket

form letters and resumes to multiplepotential employers, a personal interestmay not arise until a potential employerexpresses specific interest in the lawyer.If in response to such blanket form lettersand resumes, the employer sends a non-targeted and general response (e.g., anotification that the application has beenreceived and nothing more), a personalinterest conflict may not arise at thattime. Assuming a lawyer has a materialand active role in a matter, a personalinterest conflict arises if the lawyer par-ticipates in substantive discussion of hisexperience, clients, or business potential,or the terms of employment, with theprospective employer. A personal interestconflict is clearly present where there isan outstanding offer of employment thatthe lawyer is considering or has accepted.

At bottom, the lawyer must examineeach situation carefully to determinewhether, given all of the facts subjective-ly and objectively judged, the lawyer’sprofessional judgment on behalf of theclient will be or reasonably may beadversely affected by his interest inpotential employment with the adversaryor the adversary’s lawyer.

(iii) Opinion 210

Opinion 210 provides an example ofhow an application of these criteria couldgive rise to a personal interest conflict.The attorney who submitted the inquiryin Opinion 210 was a sole practitionerwho primarily represented criminaldefendants in the Superior Court of theDistrict of Columbia against the USAO-DC and was applying to the USAO-DCfor employment. As a sole practitionershe would have had primary responsibil-ity for all of her cases and would havehad direct personal interactions with thelawyers in the Office to which she wasapplying. Therefore, submitting a resumewas sufficient to give rise to a personalinterest conflict. This is quite differentfrom an employment search where atransactional lawyer who is not material-ly and actively involved in a transactionsubmits broadcast resumes to manypotential employers, who happen toinclude an adversary in a transaction, orthat adversary’s counsel.

(2) Prospective Employer Affiliated

with, or Related to, but Separate and

Distinct from, Entity or Person

Adverse to the Lawyer’s Client

If a lawyer is seeking employmentwith a nonprofit, corporate legal depart-

ment, or government agency, that entitymay be affiliated with, but separate anddistinct from, the entity that is adverse tohis client. For example, a nonprofit orcorporation may be a subsidiary or affili-ate of a parent corporation, but the sub-sidiary or affiliate may not be whollyowned by the parent, the two companiesmay have separate legal departments, andthe two companies may have separateofficers, directors, offices, and businessactivities. A government agency mayhave separate bureaus, offices, or compo-nents all within the same agency. The twoentities may conduct separate hiringprocesses.

More specifically, Rule 1.6(k) pro-vides that the client of a governmentlawyer is the agency that employs thelawyer, unless expressly provided to thecontrary by appropriate law, regulation,or order. Comment [38] to Rule 1.6 pro-vides that the term “agency” includes,inter alia, executive and independentdepartments and agencies, special com-missions, committees of the legislature,agencies of the legislative branch such asthe Government Accountability Office,and the courts to the extent that theyemploy lawyers (e.g., staff counsel) tocounsel them. The employing agency hasbeen designated the “client” under thisRule to provide a commonly understoodand easily determinable point for identi-fying the government “client.” Thus, todetermine when a personal interest con-flict may arise in seeking employmentwith a government entity it is necessaryto examine a government agency’s par-ticular rules, regulations, and orders.

If the employer is separate and distinct,the lawyer would likely not have a per-sonal interest conflict in seeking employ-ment unless the lawyer believes he couldnot provide competent and diligent repre-sentation to the affected client. For exam-ple, in Opinion 210 we consideredwhether a lawyer could continue to seekand accept new clients whom the Districtof Columbia Corporation Counsel’sOffice10 was prosecuting while her appli-cation for employment with the USAO-DC was pending. We concluded that thisquestion did not present a situation inwhich there is or may be a conflict ofinterest between the lawyer’s interestsand her client’s interests. The lawyercould not reasonably be concerned aboutjeopardizing her employment prospectswith the USAO-DC’s Office, which ispart of the Department of Justice, a fed-

384 THE DISTRICT OF COLUMBIA BAR July 2014

8We reiterate that both the subjective and objec-

tive tests under Rule 1.7(b)(4) discussed aboveapply to these determinations.

9Because there is no “bright line” test, there

conceivably may be factual scenarios where a per-sonal interest conflict could exist without thelawyer communicating his interest in employmentto the prospective employer.

10This office is now the District of Columbia

Office of the Attorney General.

eral Executive Branch agency, whilezealously defending a criminal clientprosecuted by the District of ColumbiaCorporation Counsel’s Office, a Districtof Columbia agency. Therefore, DR 5-101, the predecessor to Rule 1.7(b)(4),did not apply. Although a client in acriminal matter may prefer that hislawyer be completely “defense oriented”and not consider becoming a prosecutorwith any employer while defending him,this preference does not mean that a per-sonal interest conflict exists.

As discussed below, there may be fac-tual scenarios, however, where theremight be a personal interest conflict evenif the prospective employer is separateand distinct from the client’s adversary.

(a) District of Columbia GovernmentAgencies

In D.C. Bar Opinion 268 (1996) (“Con-flict of Interest Where Private LawyersProvide Volunteer Legal Assistance to theD.C. Corporation Counsel; Reconsidera-tion of Opinion 92”), the Committee con-cluded that a lawyer may give volunteerlegal assistance to the D.C. Corporationcounsel and simultaneously continue torepresent private clients against the Cityand its agencies. We recognized that theCity government client is not always theCity as a whole, but may be more narrow-ly defined as one of the City’s constituentagencies. Therefore, a personal interestconflict does not arise where the lawyer isnot opposing his own City governmentclient, but some other agency of the City.Although Opinion 268 did not address theissue of a lawyer seeking employmentwith a City agency that is adverse to hisclient, it provides some guidance con-cerning when a lawyer may have a per-sonal interest conflict in seekingemployment with the D.C. government.If the lawyer is litigating against oneagency of the D.C. government, butapplies to another section of the D.C. gov-ernment, he may not have a personalinterest conflict because the agency andthe other section are not the same adver-sary for conflict of interest purposes.

(b) Federal Government Agencies

Federal statutory and regulatory provi-sions that apply to lawyers (among oth-ers) who are employed by federalagencies may provide some guidance asto when a federal government entity withwhich a lawyer is seeking employmentmay be considered to be separate and dis-tinct from another such entity that is

adverse to the lawyer’s client in a pend-ing matter. Although the Committee doesnot opine on legal matters, these federalstatutes and regulations may assistlawyers in determining whether theyhave a personal interest conflict whenseeking employment with the federalgovernment.11

18 U.S.C. § 207 contains the sevenfederal statutory restrictions that maylimit lawyers’ activities after they leavefederal government service (or after theyleave certain senior positions in the fed-eral government). The U.S. Office ofGovernment Ethics (“OGE”) has pub-lished guidance, at 5 C.F.R. pt. 2641,concerning all seven of the restrictions in§ 207, as well as all the exceptions in thestatute. 5 C.F.R. § 2641.302, entitled“Separate Agency Components,” pro-vides that, for purposes of 18 U.S.C. §207(c) only (senior employees), theDirector of OGE may designate agency“components” that are distinct and sepa-rate from the “parent” agency and fromeach other. Absent such designation, therepresentational bar of § 207(c) extendsto the whole of the agency in which thesenior employee served. The list of des-ignated components is published andperiodically updated.12

Although these statutory and regulato-ry provisions do not apply to lawyersseeking federal government employment,they may provide some guidance con-cerning when a lawyer may have a per-sonal interest conflict under Rule1.7(b)(4) in seeking employment with aparticular federal government agency or

component thereof. The lawyer seekingemployment with a federal governmentagency may consider whether one com-ponent of a federal government agency isexpressly designated by OGE as separatefrom another component of that federalgovernment agency, and, even if it is notso designated, may consider as guidancethe enumerated criteria in determiningwhether he may have a personal interestconflict under Rule 1.7(b)(4). If the dif-ferent components of the federal govern-ment agency are separate and distinctentities under the statutes and regulationsfor conflict of interest purposes, thelawyer may not have a personal interestconflict under Rule 1.7(b)(4).

(c) Corporate or Nonprofit Legal Depart-ment

With respect to corporate or nonprofitclients, Comment [21] to Rule 1.7 recog-nizes the presumption that the lawyerwho represents a corporation, partner-ship, trade association, or other organiza-tion-type client is deemed to representthe specific entity and not its subsidiaries,affiliates, or “other constituents.”13

Thus, when a lawyer seeks employ-ment with the legal department of a cor-poration that is a subsidiary or an affiliateof a corporation that is adverse to hisclient, and the adverse corporation has itsown separate legal department and is oth-erwise separate from the subsidiary oraffiliate, as a general rule, and absentother circumstances, the two entities usu-ally would not be considered the sameentity for conflicts purposes, and thelawyer likely would not have a personalinterest conflict in seeking employmentwith a subsidiary or affiliate of a corpora-tion that is adverse to the lawyer’s client.This conclusion is consistent with Opin-ion 268 and Opinion 210 because thelawyer’s client is not adverse to hisprospective employer, but to a separateand distinct subsidiary or affiliate of hisprospective employer.

(3) Three Possible Courses of Action to

Resolve a Personal Interest Conflict

There are three possible courses ofaction available to a lawyer with a per-

July 2014 THE DISTRICT OF COLUMBIA BAR 385

11Moreover, a federal government lawyer seek-

ing employment with a person or entity adverse tothe federal government, or the adversary’s lawyer,is subject to conflict of interest provisions underfederal statutes and regulations (e.g., 18 U.S.C. §§207, 208 and 5 C.F.R. pt. 2635, Subpart F) in addi-tion to Rule 1.7(b)(4). As noted, the Committeedoes not opine on legal matters. Accordingly, theapplicability of, and compliance with, these federalstatutes and regulations are beyond the scope ofthis Opinion. Government lawyers seeking newemployment, however, are alerted to the fact thatthey must consider both sets of conflict of interestprovisions.

125 C.F.R. § 2641.302 sets forth the following

criteria for designating an agency component to be“separate”: (1) the component is created by statuteor a statutory reference indicating that it exercisesfunctions which are distinct and separate; (2) thecomponent exercises distinct and separate subjectmatter or geographical jurisdiction; (3) the degreeof supervision exercised by the parent over thecomponent is minimal; (4) the component exercis-es responsibilities that cut across organizationallines within the parent; (5) the size of the compo-nent in absolute terms is significant; and (6) thesize of the component in relation to other agenciesor bureaus within the parent is significant.

13This presumption can be rebutted under

Comment [23] if the organizational affiliates aredeemed to be “alter egos” by analyzing a number offactors. For example, if the affiliates have a unifiedcorporate legal department, they may be consideredthe same entity for conflicts purposes. For purpos-es of this Opinion, we assume that the presumptionis not rebutted.

sonal interest conflict: (a) disclosing tothe client the existence and nature of thepersonal interest conflict and the possibleadverse consequences of the lawyer’srepresentation of the client and obtainingthe client’s informed consent to the rep-resentation notwithstanding the personalinterest conflict under Rule 1.7(c)(1),provided Rule 1.7(c)(2) permits thiscourse of action; (b) withdrawing fromthe representation under Rule 1.16(a) orRule 1.16(b), if applicable; or, (c) discon-tinuing seeking employment with theclient’s adversary or the adversary’slawyer until all pending matters relatingto that potential new employment havebeen completed.

(a) Disclosure of Personal Interest Con-flict to Client and Client Consent to Rep-resentation

Rule 1.7(c)(1) allows a lawyer who hasa personal interest conflict arising out ofhis seeking employment with an entity orperson adverse to his client, or with theadversary’s lawyer, to represent the clientnotwithstanding the personal interestconflict if the client provides informedconsent to such continued representationafter full disclosure of the existence andnature of the conflict and the possibleadverse consequences of such representa-tion.

However, as is the case with Rule1.7(b)(4), Rule 1.7(c)(2) applies both asubjective test and an objective testbefore the personal interest conflict canbe waived: “the lawyer reasonablybelieves that the lawyer will be able toprovide competent and diligent represen-tation to each affected client.” Thus, dis-closing the conflict to the client andobtaining the client’s consent are notoptions under Rule 1.7(c)(1) unless, bothsubjectively and objectively judged, thelawyer can provide competent and dili-gent representation to the client notwith-standing the personal interest conflict.14

If the lawyer already has been repre-senting the client while operating under apersonal interest conflict because he isseeking prospective employment with aperson or entity adverse to his client, orthe adversary’s lawyer, he may ask the

client for retroactive consent to his repre-sentation under Rule 1.7(c) notwithstand-ing his personal interest conflict.15

Although Rule 1.7(c)(1) does notrequire that the client’s consent bememorialized in writing, it would be pru-dent to obtain either current or retroactiveconsent in writing from the client.

(b) Withdrawal from Representation ofClient

In some circumstances, the individuallawyer may resolve a personal interestcon flict by withdrawing from the repre-sentation of the client under Rule1.16(a)(1), which requires a lawyer towithdraw from representation of theclient if the representation will result in aviolation of the Rules of ProfessionalConduct.

Alternatively, even if the Rules of Pro-fessional Conduct would not be violated,withdrawal could be made under Rule1.16(b) if withdrawal can be accom-plished without material adverse effecton the interests of the client.16

If the rules of the cognizant tribunal sorequire, under Rule 1.16(c), the lawyermust obtain the permission of the tribunalto withdraw and, if ordered by the tribu-nal, must continue the representationnotwithstanding good cause for with-drawal.

(c) Discontinuation of the ProspectiveEmployment Process

The third course of action is discontin-uing seeking employment with theclient’s adversary or the adversary’slawyer until all pending matters relatingto that potential new employment havebeen completed. Even after he stopsseeking this potential new employment,the lawyer still will need to considerwhether the lawyer has an ongoing inter-est in pursuing such employment in the

future that is of such a nature that it will,or reasonably may, adversely affect thelawyer’s professional judgment on behalfof the client.

(4) Imputation of Personal Interest

Conflict

D.C. Rule 1.10(a)(1) provides that anindividual lawyer’s conflict of interestunder Rule 1.7(b)(4) is not imputed toother lawyers in his current “firm” if thatpersonal interest conflict does not presenta significant risk of adversely affectingthe representation of the client by theremaining lawyers in the firm.17 Accord-ingly, a personal interest conflict of alawyer in a firm who is seeking employ-ment with an entity that is adverse to oneof the firm’s clients, or the adversary’slawyer, is not imputed to other lawyers inthe firm, assuming his personal interestconflict will not adversely affect the rep-resentation of the client by the otherlawyers in the firm.

For purposes of imputation of con-flicts, Rule 1.0(c) and Rule 1.10 definethe term “firm” to include law firms, non-profits, and corporate legal departments,but not government agencies. Thus, evenin those limited situations where a Rule1.7(b)(4) personal interest conflict maybe imputable to a “firm,” there would beno such imputation if the conflictinvolves a lawyer employed by a govern-ment agency.

(5) Duties of Subordinate and Supervi-

sory Lawyers When Subordinate Has

a Personal Interest Conflict

(a) Subordinate Lawyer

If the lawyer seeking employment withan entity or person adverse to his client,or the adversary’s lawyer, is a “subordi-nate lawyer” within the meaning of Rule5.2(b), and is supervised by a “superviso-ry lawyer” within the meaning of Rule5.1 (see below), the supervisory lawyermay attempt to determine whether thesubordinate lawyer has a personal inter-est conflict and, if so, what the appropri-ate course of action is for the subordinate

386 THE DISTRICT OF COLUMBIA BAR July 2014

14In addition to the requirements of Rule

1.7(c)(2), a lawyer considering this issue shouldexamine his obligations under Rule 1.3(a) (Dili-gence and Zeal) and Rule 1.4(a) (Communication)and Comment [5] under the Scope section of theRules. Ultimately, however, the rule of interpreta-tion expressed in Comment [5] and Rule 1.3 andRule 1.4 do not supplant, amend, enlarge or extendthe requirements of Rule 1.7(c)(2).

15See, e.g., Interstate Properties v. Pyramid

Company of Utica, 547 F. Supp. 178 (S.D.N.Y1982); In re Evans, 902 A.2d 56 (D.C. 2006); Grivav. Davidson, 637 A.2d 830 (D.C. 1994); Jesse v.Danforth, 486 N.W.2d 63 (Wis. 1992). As a gener-al proposition, the Restatement (2d) of the LawGoverning Lawyers § 21(4) states: “A client mayratify an act of a lawyer that was not previouslyauthorized.”

16If the lawyer withdraws from the representa-

tion, he must comply with the requirements of Rule1.16(d) to protect the client’s interests. After with-drawal, he must also consider his ethical dutiesunder Rule 1.6 (Confidentiality of Information),Rule 1.9 (Conflict of Interest; Former Client) andRule 1.11 (Successive Government and Private orOther Employment).

17Comment [8] to D.C. Rule 1.10 differs from

its ABA Model Rule 1.10 counterpart (comment [3]to ABA Model Rule 1.10) in that the D.C. Com-ment [8] expressly states (referring to Opinion210), “nor would representation by the firm be pre-cluded merely because one of its lawyers is seekingpossible employment with an opponent (e.g. U.S.Attorney’s Office) or with a law firm representingthe opponent of a firm client.” There is no similarlanguage in its ABA Model Rule 1.10 counterpart(comment [3] to ABA Model Rule 1.10).

lawyer. Under Rule 5.2(a), generally alawyer violates the Rules of ProfessionalConduct even if he acts at the direction ofanother person. However, under Rule5.2(b), a subordinate lawyer is notresponsible for a violation of Rule1.7(b)(4) if he acts in accordance with asupervisory lawyer’s reasonable resolu-tion of an arguable question of profes-sional duty. Accordingly, if a subordinatelawyer discusses a potential personalinterest conflict with his supervisorylawyer, and acts in accordance with thesupervisory lawyer’s reasonable determi-nation of whether the subordinate lawyerhas a personal interest conflict and fol-lows the supervisory lawyer’s recom-mended course of action, the subordinatelawyer will not be held professionallyresponsible even if it is subsequentlydetermined that the supervisory lawyer’sdetermination of whether there was a per-sonal interest conflict, and/or the recom-mended course of action, were incorrectunder the Rules.

(b) Supervisory Lawyer

Rule 5.1(a) provides that a partner in a“firm” or “law firm,” and a lawyer whoindividually or together with otherlawyers possesses comparable manageri-al authority in a law firm or governmentagency, shall make reasonable efforts toensure that the firm or governmentagency has in effect measures providingreasonable assurance that all lawyers inthe firm or government agency conformto the Rules of Professional Conduct.

Rule 5.1(b) provides that a lawyer hav-ing direct supervisory authority overanother lawyer shall make reasonableefforts to ensure that the other lawyerconforms to the Rules of ProfessionalConduct. Comment [1] to Rule 5.1 statesthat both Rule 5.1(a) and Rule 5.1(b)apply to members of a law firm, lawyershaving comparable managerial authorityin a nonprofit, corporate legal depart-ment, or government agency, and tolawyers who have intermediate manage-rial responsibilities in those entities.

Rule 5.1(c)(2) sets forth general princi-ples for the imputation to a supervisorylawyer of liability for a subordinatelawyer’s violation of the Rules of Profes-sional Conduct. If the supervisory lawyerknows or reasonably should know of theviolation at a time when its consequencescan be avoided or mitigated but fails totake reasonable remedial action, the sub-ordinate lawyer’s violation is imputed tothe supervisory lawyer. Thus, if thesupervisory lawyer knows or reasonably

should know that the subordinate lawyerhas a personal interest conflict and failsto take appropriate action, the superviso-ry lawyer may be responsible for the sub-ordinate lawyer’s violation of Rule1.7(b)(4).

A supervisory lawyer may take a vari-ety of actions where a subordinate lawyeris seeking employment with an adversaryor an adversary’s lawyer. Dependingupon the facts, a supervisory lawyermight reasonably determine that there isa personal interest conflict and disclosethe subordinate lawyer’s prospectiveemployment to the client and seek theclient’s consent to the subordinatelawyer’s continued representation of theclient notwithstanding the personal inter-est conflict. A supervisory lawyer mightchoose to relieve the subordinate lawyerof any responsibility for working on thatclient’s matter and have other lawyers inthe law firm, nonprofit, corporate legaldepartment, or government agency con-tinue to represent the client.18 Under adifferent set of facts, a supervisorylawyer might reasonably determine thatthe subordinate lawyer does not have apersonal interest conflict, and thus thesupervisory lawyer would not be requiredto disclose the subordinate lawyer’sprospective employment to the client andobtain the client’s consent. The supervi-sory lawyer, nevertheless, may stilldecide to relieve the subordinate lawyerof any responsibility for working on thatclient’s matter to avoid the possibilitythat the subordinate lawyer’s role in thematter will develop into one that wouldgive rise to a personal interest conflict.

Conclusion

When a lawyer is seeking employmentwith a person or entity adverse to hisclient, or the adversary’s lawyer, the exis-tence of a personal interest conflict underRule 1.7(b)(4) is not susceptible to a“bright line” test. The lawyer must deter-mine, using both subjective and objective

tests, whether the lawyer’s professionaljudgment on behalf of the client will, orreasonably may, be adversely affected.Factors to consider include whether thelawyer is materially and actively involvedin representing the client and, if so,whether the lawyer’s interest in theprospective employer is targeted and spe-cific and/or whether the prospectiveemployer has reciprocated the lawyer’sinterest. If the lawyer has a personal inter-est conflict there are three courses ofaction that may be available, each ofwhich is subject to the applicable require-ments of the Rules: disclosing the person-al interest conflict and obtaining theclient’s consent to continued representa-tion; withdrawing from the representa-tion, if possible; or, discontinuing seekingemployment with the client’s adversary orthe adversary’s lawyer until all pendingmatters relating to that potential newemployment have been completed.

Published July 2014

Opinion 368

Lawyer Employment Agreements—

Restrictions on Departing Lawyer

Who Competes with Former Firm

A law firm may not provide for orimpose liquidated damages on a lawyerwho, after departure, competes with thefirm. A firm and a departing lawyer mayhave liability to one another, though, forwork done before the lawyer’s departure.Also, a firm may not restrict a departedlawyer’s subsequent professional associa-tion or affiliation with partners oremployees of the firm, except insofar assuch activity is subject to legal limitationsoutside the Rules of Professional Con-duct. Whether a choice of law provisionin a partnership or employment agree-ment can avoid application of the D.C.Rule governing lawyer departures usuallywill depend on the location where thedeparting lawyer principally practiced.

Applicable Rules

• Rule 5.6(a) - Restrictions on Rightto Practice

• Rule 8.5(b)(2) – DisciplinaryAuthority; Choice of Law

• Rule 8.4 - Misconduct

Inquiry

The committee has received a numberof inquiries along the following lines andhas concluded that a discussion of theseissues will be of interest to the Bar.

July 2014 THE DISTRICT OF COLUMBIA BAR 387

18The Committee recognizes the difficult posi-

tion created for the subordinate lawyer who has apersonal interest conflict and is faced with thechoice of informing the supervisory lawyer of pos-sible alternative employment, and risking negativeinternal consequences with the current employer, orimproperly not disclosing the personal interest con-flict. The Committee is sensitive to the difficultposition created for the subordinate lawyer by thisdecision but is unable to propose a “safe harbor”for the subordinate lawyer. The Rules of Profes-sional Conduct Review Committee is alerted to theneed to consider a viable means for subordinatelawyers to address the personal interest conflictissue without jeopardizing continued satisfactoryemployment with the current employer.

1. Whether a law firm may provide for orimpose liquidated damages on alawyer who, after departure, competeswith the firm.

2. Whether a law firm may provide for orimpose a financial penalty on a depart-ing lawyer who associates profession-ally with anyone who was a partner oremployee (lawyer or non-lawyer) atthe firm.

3. Whether, where at least one lawyer at alaw firm is admitted to practice in boththe District of Columbia and anotherjurisdiction, the firm may insert achoice of law provision in a partner-ship, employment, or other agreementin order to avoid applying Rule 5.6(a)of the D.C. Rules of Professional Con-duct in favor of a rule of the otherjurisdiction that addresses the samesubject matter but yields a differentresult.

Analysis

For the reasons set out below, the com-mittee answers the first two inquiries inthe negative. Our answer to the thirdinquiry is somewhat more complex.

The D.C. Rules of Professional Con-duct (“D.C. Rules”) provide:

“A lawyer shall not participate in offer-

ing or making:

(a) A partnership, shareholders, operat-

ing, employment, or other similar type

of agreement that restricts the rights of a

lawyer to practice after termination of

the relationship, except an agreement

concerning benefits upon retirement.”1

D.C. Rule 5.6.2

Because they limit a client’s freedomin choosing a lawyer and a lawyer’s pro-fessional autonomy, provisions in part-nership, employment, and otheragreements that expressly or impliedlyrestrict a lawyer’s practice are prohibited.Neuman v. Akman, 715 A.2d 127, 130-31(D.C. 1998) (citing D.C. Rule 5.6, cmt.[1]); accord Cohen v. Lord, Day & Lord,550 N.E.2d 410, 411 (N.Y. 1989);3

Stevens v. Rooks Pitts and Poust, 682N.E.2d 1125, 1132 (Ill. App. 1997);4 D.C.Legal Ethics Op. 325 (2004); D.C. LegalEthics Op. 241 (1993); D.C. Legal EthicsOp. 122 (1983).5 The prohibition extendsnot only to absolute bars upon competi-tion with the former firm but also, at leastin some circumstances, to “[r]estrictions .. . that impose a substantial financialpenalty on a lawyer who competes afterleaving the firm.” D.C. Rule 5.6 cmt.[2];6 accord Cohen, 550 N.E.2d at 411;Stevens, 682 N.E.2d 1125; D.C. LegalEthics Op. 325 (2004); D.C. Legal EthicsOp. 241 (1993); D.C. Legal Ethics Op.194 (1988); D.C. Legal Ethics Op. 65(1979).7

Liquidated damages

The first inquiry addresses whether alaw firm may provide for or impose liq-uidated damages on a lawyer who, afterdeparture, competes with that firm. Liq-uidated damages, unlike actual damages,are fixed in advance of a breach ratherthan afterward. They are viewed by theD.C. Court of Appeals “with a gimleteye” and will be sustained only if “‘not .. . disproportionate to the level of [actual]damages reasonably foreseeable at the

time of the making of the contract.’”8

District Cablevision Limited Partnershipv. Bassin, 828 A.2d 714, 723 (D.C. 2003)(quoting Council v. Hogan, 566 A.2d1070, 1092 (D.C. 1989)); accordAshcraft & Gerel v. Coady, 244 F.3d 948,954-55 (D.C. Cir. 2001).9 Moreover—

when a contract specifies a single sum in

damages for any and all breaches even

though it is apparent that all are not of

the same gravity, the specification is not

a reasonable effort to estimate damages;

and when in addition the fixed sum

greatly exceeds the actual damages like-

ly to be inflicted by a minor breach, its

character as [an impermissible] penalty

becomes unmistakable.

District Cablevision, 828 A.2d at 723(quoting Lake River Corp. v. Car-borundum Co., 769 F.2d 1284, 1290(7th Cir. 1985)); accord Jacob v. Nor-ris, McLaughlin & Marcus, 607 A.2d142, 151 (N.J. 1992); cf. Ashcraft &Gerel, 244 F.3d at 955 (upholding liq-uidated damages clause where amountwas not fixed but increased over timeto reflect lawyer’s increasing value tolaw firm).

As we read D.C. Rule 5.6(a), Neumanand other case law, and our own previ-ous opinions, a departing lawyer maynot be subjected to liquidated damagesbecause she subsequently competes withher former firm. She and the firm maybe responsible to one another for thevalue of work completed before sheleaves the firm. See D.C. Legal EthicsOp. 194 (1988) (disapproving agree-ment that deprived departing lawyer ofpart of unrealized accounts if lawyercompeted within 12 months). Thisapplies notably in the case of contingentfee cases. Compensation for such mat-ters might not be received or even oweduntil long after her departure, and a por-tion of that compensation might beattributable to work done at the formerfirm prior to her departure. D.C. LegalEthics Op. 221 (1991); accord In re The-len LLP, 20 N.E.3d 264, 271 (N.Y.2014) (stating that former firm is enti-

388 THE DISTRICT OF COLUMBIA BAR February 2015

1This opinion does not address the rule’s excep-

tion for “benefits upon retirement.”

2This rule, promulgated in 1991, is substantive-

ly indistinguishable from DR 2-108(A) of the for-mer D.C. Code of Professional Responsibility. SeeNeuman, 715 A.2d at 130 n. 5.

3Although Cohen was decided under New York

law, the New York rule is similar to ours and theD.C. Court of Appeals has characterized Cohen as“perhaps the leading case interpreting Rule 5.6(a)or its equivalent.” Neuman, 715 A.2d at 132.

4Stevens applied Illinois law. The D.C. Court

of Appeals noted in Neuman, however, that giventhe similarity of D.C. Rule 5.6 to Model Rule 5.6and analogous rules of other jurisdictions, it had“freely consulted the various sources we havefound that construe those codes.” Neuman, 715A.2d at 130 n. 5. For this reason, it is appropriateto take note of decisions elsewhere that interpretsimilar rules.

5 D.C. Legal Ethics Opinions 1 through 209were issued under the former D.C. Code of Profes-sional Responsibility. Because the prohibition inD.C. Rule 5.6(a) substantively is the same as for-mer D.C. DR 2-108(A), see note 2, supra, and noneof this committee’s earlier opinions interpreting DR2-108(A) has been expressly or impliedly over-ruled, we consider those opinions as well as thosedecided under the D.C. Rules.

6Comment 2, which was added to the D.C.

Rules in 2006, does not have a counterpart in thecomments to Model Rule 5.6. The D.C. Rulesdefine “substantial” as denoting “a material matterof clear and weighty importance.” D.C. Rule1.0(m).

7Some jurisdictions permit “reasonable” finan-

cial assessments against former partners who com-pete with the firm if such assessments accuratelyreflect the reduction in the firm’s value due to thedeparture. E.g., Howard v. Babcock, 863 P.2d 150(Calif. 1993); Jacob v. Norris, McLaughlin & Mar-cus, 607 A.2d 142, 151-52 (N.J. 1992). This is dis-tinctly the minority rule, however. Restatement(Third) of the Law Governing Lawyers § 13 rptr. n.b. (2000); Ellen J. Bennett, Elizabeth J. Cohen &Martin Whittaker, Annotated Model Rules of Pro-fessional Conduct 489 (7th ed. 2011).

8This committee does not opine on legal ques-

tions outside the D.C. Rules but often must discussits understanding of such issues in order to providecontext for its views on the D.C. Rules.

9In a different context, the sales article of the

D.C. Commercial Code permits liquidated dam-ages “only at an amount which is reasonable in thelight of the anticipated or actual harm caused by thebreach, the difficulties of proof of loss, and theinconvenience or nonfeasibility of otherwiseobtaining an adequate remedy. A term fixingunreasonably large liquidated damages is void as apenalty.” D.C. Code § 28:2-718 (2014).

tled to an accounting for value of con-tingent fee case as of the lawyer’s depar-ture date). A 1990 D.C. Court of Appealsdecision held that contingent fee mattersare part of the partnership property.Beckman v. Farmer, 579 A.2d 618 (D.C.1990). Farmer was a law firm dissolu-tion matter that did not involve a penal-ty for post-departure competition, so theopinion did not discuss the penalty-for-competition issue. Id.10

By contrast, we believe that anagreement imposing substantial dam-ages—actual or liquidated—attributa-ble to or because of work done by thedeparting lawyer (or her new firm) incompetition with the former firm aftershe relocates would violate Rule 5.6(a).D.C. Legal Ethics Op. 65 (1979); seeStevens, 682 N.E.2d at 1131-32. But cf.Robinson v. Nussbaum, 11 F. Supp. 2d1 (D.D.C. 1997) (holding that hourlymatters are partnership property but notaddressing post-departure competitionpenalties).11

In 1979 this committee considered aliquidated damages provision that alawyer’s post-departure work “for aclient of the firm during a two-year peri-od following . . . termination” would ren-der the departing lawyer liable to hisformer firm for “40% of his net billingsto such clients . . . during the said twoyear period.” D.C. Legal Ethics Op. 65(1979). The committee concluded thatthe provision violated the predecessor ofD.C. Rule 5.6(a). Id. A later opinion dis-approved a clause that imposed liquidat-ed damages of $150,000 for any breachof an agreement’s suite of post-employ-

ment restrictions. D.C. Legal Ethics Op.181 (1987).12

In Thelen, the New York Court ofAppeals decided that hourly fee mattersare not law firm property. In re ThelenLLP, 20 N.E.3d 264. This opinion doesnot address that particular issue but theThelen court pointed out several policyconsiderations that are relevant here.First and most important, many a depart-ing lawyer would be compelled to informclients who wish to follow her that shecan’t afford to continue representingthem. That would constitute—

a major inconvenience for the clients

and a practical restriction on a client’s

right to choose counsel. Or, more likely,

these attorneys would simply find it dif-

ficult to secure a position in a new law

firm because any profits from their work

for existing clients would be due their

old law firm, not their new employers.

* * *Additionally, clients might worry that

their hourly fee matters are not getting

as much attention as they deserve if the

[new] law firm is prevented from profit-

ing from its work on them.

Id. at 273. Second, such a rule wouldallow the departed lawyer’s former part-ners “to profit from work they do not per-form, all at the expense of a [the departedlawyer and her] new firm,” thus creatinga windfall for the former firm. Id.

Similar considerations underlie Rule5.6(a). Thus, regardless of whether a liq-uidated damages provision passes musterunder contract principles, it is groundsfor professional discipline if it runs afoulof the limitations set out above.13

Restrictions upon post-departure associ-ation with personnel of former firm

The second inquiry is whether a law

firm may penalize a lawyer financiallyfor entering into an agreement or associ-ation with an individual who was a part-ner or employee (lawyer or non-lawyer)with the former firm.

In 1987 this committee reviewed anagreement we described as “perpetuallyprohibiting any interference” by a depart-ed lawyer “with the firm’s relationshipswith its lawyer/employees.” D.C. LegalEthics Op. 181 (1987). The committeeopined that by interfering with the rightof association among attorneys, the pro-vision indirectly restricted the departingattorney’s right to practice law and henceviolated the predecessor of Rule 5.6(a).Id. (citing ABA Informal Op. 1417(1978)); accord Jacob, 607 A.2d at 152-54. We see no reason to alter this conclu-sion and accordingly reaffirm Opinion181.14 As is the case in respect of dam-ages for post-departure competition, anypenalty must be substantial to trigger theprohibition of Rule 5.6(a). D.C. Rule5.6, cmt. [2].

This is not to say that a departinglawyer has an unlimited right to solicitfirm partners or employees, particularlybefore she departs. We have noted thatalthough this issue is “primarily, if notentirely,” a function of “law other thanethics law, such as the common law ofinterference with business relations andfiduciary obligations,” there could beextreme instances where deception anddishonesty by the departing lawyer mightconstitute “dishonesty, fraud, deceit, ormisrepresentation” in violation of Rule8.4(c). D.C. Legal Ethics Op. 273(1997).

Choice of Law

The final inquiry is whether, where thedeparting lawyer also is admitted to prac-tice in another jurisdiction,15 a choice oflaw provision in a partnership or otheragreement may avoid the application ofD.C. Rule 5.6(a) in favor of a rule of theother jurisdiction that yields a differentresult. By way of example, a minority ofjurisdictions permit the imposition of afinancial penalty on a competing former

February 2015 THE DISTRICT OF COLUMBIA BAR 389

10We know of no D.C. appellate rulings on the

issue of post-departure compensation for hourly feematters, and this opinion does not address thatissue.

11This committee cannot opine on whether an

agreement that violates D.C. Rule 5.6(a) can beenforced as a matter of contract law. Rule C-4,Rules of the District of Columbia Bar Legal EthicsCommittee (1995); accord D.C. Legal Ethics Op.65 (1979) (declining to address enforceability ofagreement that violated predecessor of Rule5.6(a)); see also N.Y.C. Bar Ass’n Formal Op.1999-03 (1999) (same). The D.C. Court of Appealsdoes not appear to have ruled on the enforceabilityissue. A 1994 U.S. District Court ruling in D.C.held such a provision unenforceable. Shainis v.Baraff, Koerner, Olender & Hochberg, P.C., 1994U.S. Dist. Lexis 21971 (Civil Action No. 93-2253(NHJ)) (July 18, 1994). Case law elsewhere isdivided. Compare Feldman v. Minars, 658N.Y.S.2d 614, 617 (App. Div. 1997) (enforcingagreement even though it violated Rule 5.6(b)),with Denburg v. Parker Chapin Flattau & Klimpl,624 N.E.2d 995 (N.Y. 1993) (holding unenforce-able a provision that violated Rule 5.6(a)), Stevens,682 N.E.2d at 1131-32 (same), Jacob, 607 A.2d at155 (same), and Cohen, 550 N.E.2d 410 (same).

12Ashcraft & Gerel, which upheld a departing

lawyer’s contractual liability for liquidated dam-ages, is not to the contrary. D.C. Rule 5.6 “is inap-plicable,” said the court, “because the liquidateddamages were not linked to [the departinglawyer’s] decision to compete with the firm” andhence were “readily distinguishable from a contractnot to compete.” Ashcraft & Gerel, 244 F.3d at 955.Moreover, Ashcraft & Gerel, which applied Districtof Columbia law, was decided in 2001. In 2006,the D.C. Court of Appeals added comment 2, whichexpressly includes “substantial financialpenalt[ies]” in the prohibition of D.C. Rule 5.6(a).Given that subsequent change in D.C. law, it is con-ceivable that Ashcraft & Gerel would be decideddifferently were it to arise today.

13 Again, we express no view on whether such a

clause may be enforceable in the context of theunderlying contract dispute. See supra n. 11.

14 Opinion 181 also involved a liquidated dam-

ages clause—one that the committee described as“truly oppressive.” The opinion added that “[t]hein terrorem effect of this sword of Damocles hang-ing over the head of a departing lawyer is not to beunderestimated.” D.C. Legal Ethics Op. 181(1987).

15For the sake of simplicity, we assume that

only one other jurisdiction is involved. The basicprinciples outlined here also apply if more than oneother jurisdiction is involved.

lawyer, so long as the penalty reasonablyreflects the loss in the value of the lawfirm occasioned by the departure. Seesupra n. 7 and authorities cited therein.

A lawyer admitted to practice here issubject to the District’s disciplinaryauthority regardless of where the ques-tioned conduct occurs. D.C. Rule 8.5(a).Moreover, “[a] lawyer may be subject tothe disciplinary authority of both thisjurisdiction and another jurisdictionwhere the lawyer is admitted for the sameconduct.” Id.16 Where multiple jurisdic-tions are involved, however, and the con-duct is not in connection with a matterpending before a tribunal—

the rules to be applied [by the D.C. disci-

plinary authorities] shall be the rules of

the admitting jurisdiction in which the

lawyer principally practices; provided,

however, that if particular conduct clear-

ly has its predominant effect in another

jurisdiction in which the lawyer is

licensed to practice, the rules of that juris-

diction shall be applied to that conduct.

D.C. Rule 8.5(b)(2) (emphasis added).The intent of this rule is that “any partic-ular conduct of an attorney shall be sub-ject to only one set of rules ofprofessional conduct” and that theprocess of determining which set appliesbe “as straightforward as possible.” D.C.Rule 8.5 cmt. [3].

Although they antedate choice-of-lawprovisions in the Model Rules17 and stateethics codes, several rulings from outsidethe District of Columbia are instructive.A 1991 ABA opinion, for example,addressed the fact that the District per-mits ownership and management of lawfirms by non-lawyers, while every otherAmerican jurisdiction prohibits sucharrangements. ABA Formal Op. 91-360(1991) (“ABA Opinion”). “[W]hat ethi-cal rule should govern,” the ABA com-mittee asked, “when lawyers are partnersin a law firm that, as permitted by theD.C. rule, includes nonlawyer partners,but are also members of the bar of anoth-er jurisdiction [State X] whose rules for-

bid such partnerships?” Id. The ABAcommittee concluded that if the lawyeradmitted in D.C. and in State X is prac-ticing in a D.C.-located firm with non-lawyer partners, State X should notdiscipline her for such conduct. Id. Onthe other hand, State X should be able todiscipline the lawyer if she were to prac-tice in State X as a partner of the D.C.-located firm. Id.;18 accord Mich. Op.RI-225 (1995); see In re Overboe, 745N.W.2d 852, 861-62 (Minn. 2008)(applying South Dakota rules to conductof lawyer admitted there and in Minneso-ta where lawyer’s office and trust accountwere in South Dakota and funds involvedwere those of South Dakota clients).

The ABA Opinion cited several stateethics opinions in support of its concl-sions. ABA Opinion n. 13. A 1984 Michi-gan opinion had responded to a MichiganBar member, also admitted in California,who practiced in the latter jurisdictionbut not the former. Mich. Ethics Op. CI-929 (1984). The inquirer asked whetherhe could employ a foreign lawyer in hisCalifornia law office. Id. The opinionstated that “[t]o the extent that Californiawould permit the contemplated conduct,the attorney would not be in violation ofthe Michigan Code of ProfessionalResponsibility.” Id.

The ABA Opinion also cited a 1986Maryland opinion that addressed a situa-tion where a lawyer licensed in Marylandand specially admitted to appear in a Dis-trict of Columbia litigation learned thathe had introduced the client’s forged doc-uments into evidence in connection withthe litigation. Md. State Bar Ass’n,Comm. on Ethics, Op. 86-28 (1986).Maryland’s rules required disclosure;D.C.’s prohibited it. Id. The Marylandopinion stated that—

[w]here a Maryland attorney is acting in

a foreign jurisdiction in accordance with

that jurisdiction’s Code of Professional

Responsibility, it is the opinion of this

committee that his conduct is ethical per

se. While the Maryland Code of Profes-

sional Responsibility may impose dif-

ferent or more stringent requirements on

its attorneys, it does not require its attor-

neys to behave in a manner that is incon-

sistent or at variance with the code of

conduct prescribed by another jurisdic-

tion when practicing there.

Id. Although the Maryland opinionaddressed conduct in connection with aproceeding before a tribunal, see ModelRule 8.5(b)(1), the ABA Opinionnonetheless found Maryland’s rationaleinstructive in a Rule 8.5(b)(2) setting likethat presented in this opinion.

More recently, a New York State BarAssociation opinion has set out usefulcriteria for determining where a lawyer“principally practices” and where the“predominant effect” of a lawyer’s con-duct is felt. N.Y.S. Bar Ass’n Ethics Op.1027 (2014) (“New York Opinion”).19

On the former point, the factors cited inthe New York Opinion are—

(a) the number of calendar days the

lawyer spends working in each jurisdic-

tion, (b) the number of hours the lawyer

bills in each jurisdiction, (c) the location

of the clients the lawyer serves, (d) the

activities the lawyer performs in each

jurisdiction (e.g., legal work for clients

vs. administrative work for the law

firm), and (e) special circumstances

(such as a recent move, an extended ill-

ness, or a natural disaster).

Id. (citing Roy D. Simon, Simon’s NewYork Rules of Professional ConductAnnotated 1915-17 (2014)). The NewYork Opinion adds that “[g]iven theincrease in law practice over the Internet,and the corresponding decrease in theimportance of a lawyer’s physical loca-tion, the jurisdiction in which a lawyer‘principally practices’ . . . is becomingless certain.” Id.

“[N]o simple formula is available todetermine where the ‘predominant effect’will occur,” either. Id. “Factors to consid-er include such things as (a) where theclients reside, and where they work; (b)where any payments will be deposited;(c) where any contract will be performed;and (d) where any new or expanded busi-ness will operate.” Id.

We conclude that D.C. Rule 8.5(b)(2)supplies the answer to this inquiry anddoes so consistently with the ABA Opin-ion. For the departing lawyer and lawyersin her former firm who are located in theDistrict of Columbia, it makes no differ-ence whether the “principally practices”or the “predominant effect” prong of therule applies. As to the first prong, theyprincipally practice here. As for the sec-ond prong—predominant effect—recallthat Rule 5.6(a) seeks to protect lawyers’autonomy and clients’ right to choose a

390 THE DISTRICT OF COLUMBIA BAR February 2015

16Note that ABA Model Rule 8.5(b) differs

from D.C. Rule 8.5(b) in several respects. Amongthem is the fact that under the Model Rule, a lawyermay be subject to rules of a jurisdiction where thelawyer is not admitted to practice. ABA ModelRule 8.5.

17The 1983 initial version of the ABA Model

Rules was silent on the issue. Its comments mere-ly directed readers to “principles of conflict oflaws” and “applicable rules of choice of law.”ABA Model Rules of Professional Conduct, Rule8.5 cmts. 2, 3 (1983). Current D.C. Rule 8.5(b)(2)follows the 1993 amendment to Model Rule 8.5(b).See id. Rule 8.5(b) (1993).

18 The ABA Opinion added that a lawyer admit-

ted in D.C. and State X ethically could be a partnerin both the D.C. firm and a State X firm, but only ifthe State X practice “was conducted through anoth-er firm that was both fiscally and managerially sep-arate from and independent of the D.C. firm.”ABA Opinion n. 12.

19The New York version of Rule 8.5(b)(2) is

substantively indistinguishable from D.C. Rule8.5(b)(2).

lawyer . D.C. Rule 5.6 cmt. [1]. The pre-dominant effect of a provision penalizingsuch a lawyer for post-departure compe-tition falls upon a lawyer who is locatedin D.C. For that reason, the predominanteffect prong renders members of the D.C.Bar in the firm subject to the D.C. versionof Rule 5.6(a) regardless of where theyprincipally practice.20

Where the departing lawyer is admit-ted in D.C. but located in a jurisdictionthat permits a penalty for post-departurecompetition, it also doesn’t matter whichprong of D.C. Rule 8.5(b)(2) applies.The departing lawyer principally prac-tices in the other jurisdiction, and the pre-dominant effect of the penalty provisionfalls upon that lawyer. Hence in that case,the other jurisdiction’s version of Rule5.6(a) would apply to the departing D.C.Bar member and the D.C. Bar membersin her former firm. In such a case, D.C.should not penalize those lawyers for act-ing in accordance with the other jurisdic-tion’s rule.

Conclusion

We conclude, then, that a law firm maynot provide for or impose liquidateddamages on a lawyer who, after depar-ture, competes with the firm. The firmand the lawyer may have liability to oneanother, though, for work done before thelawyer’s departure. Also, a firm may notrestrict a departed lawyer’s subsequentprofessional association or affiliationwith partners or employees of the firm,except insofar as such activity is subjectto legal limitations outside the Rules ofProfessional Conduct. Finally, whether achoice of law provision in a partnershipor employment agreement can avoidapplication of the D.C. Rule governinglawyer departures usually will depend onthe location where the departing lawyerprincipally practiced.

Published February 2015

Opinion 369

Sharing of Legal Fees With a Lawyer

Referral Service

A lawyer may remit a percentage offees earned on a matter referred to her bythe inquiring “lawyer referral service”only if such fees (1) are derived from lit-igation matters, as set out in Rule

5.4(a)(5) of the D.C. Rules of Profession-al Conduct, or (2) are “usual fees” ofsuch a service within the meaning ofcomment [6] to Rule 7.1.

Applicable Rules

• Rule 5.4 - Professional Independ-ence of Lawyer

• Rule 7.1 – Communications Con-cerning a Lawyer’s Services

Inquiry

The committee has been askedwhether the D.C. Rules of ProfessionalConduct (“D.C. Rules” or “Rules”) per-mit certain payments to a lawyer referralservice (“Service”). The Service woulddirect prospective low-income clients toa network of lawyers willing to work forsuch clients at modest rates. For eachclient referred to a network lawyer by theService, the lawyer would remit to theService a flat “referral” payment (“FlatPayment”) of approximately $200.Should the representation proceedbeyond the initial consultation, the net-work lawyer would further remit to theService fifteen percent of any fees earnedthrough the representation (“PercentagePayment”). The arrangement wouldapply to all types of legal representationand would not be limited to litigationmatters. The Service is or will be quali-fied as exempt from federal income taxa-tion under section 501(c)(3) of theInternal Revenue Code.1

The Service undertakes to “providequality assurance and accountability”through a dispute resolution panel. Theinquiry does not state whether the Ser-vice is open to all D.C. Bar members,whether it requires all participatinglawyers to have reasonably adequatemalpractice insurance, or whether it willrefer cases to lawyers who own, operate,or are employed by the Service.

For the reasons set forth below, we concludethat (1) the D.C. Rules permit the payment ofthe Flat Payment and (2) the Percentage Pay-ment is permitted only if within Rule 5.4(a)(5)or comment [6] to Rule 7.1.

Analysis

D.C. Rule 7.1 provides that “[a] lawyershall not give anything of value to a per-son (other than the lawyer’s partner oremployee) for recommending thelawyer’s services through in-person con-tact.” D.C. Rule 7.1(b)(2). The com-ments to that rule, however, state that “alawyer may participate in lawyer referralprograms and pay the usual fees chargedby such programs.” D.C. Rule 7.1, cmt.[6] (emphasis added).

Rule 5.4(a) provides that a lawyer maynot share legal fees with a non-lawyer.The purpose of this rule is “to protect thelawyer’s professional independence ofjudgment.” D.C. Rule 5.4, cmt. [1].

In 1989, this committee opined that anon-profit public interest legal servicesproject could receive a percentage (onesixth) of fees paid to attorneys to whomthe project referred clients and whoagreed to charge reduced fees. D.C.Legal Ethics Op. 201 (1989). Notingthat then-applicable Disciplinary Rule 2-103(C) of the D.C. Code of ProfessionalResponsibility expressly permitted “theusual and reasonable fees or duescharged by a lawyer referral service,” wefound that the Percentage Payment wasreasonable and, based upon a survey ofreferral arrangements in other jurisdic-tions, usual as well. Id. In reaching thisconclusion, the committee noted that theProject’s referral service was “operatedfor the benefit of the public” and that itwas designed “not . . . to procure finan-cial benefit or legal work for a lawyer asa private practitioner” but “to makeaffordable legal services available to aneedy population that might not other-wise be able to retain legal assistance.”Id. The opinion added that the arrange-ment “would apparently also be proper”under Rule 7.1 of the proposed D.C.Rules, which was then pending beforethe D.C. Court of Appeals, but made nomention of Rule 5.4 of the proposedD.C. Rules. Id. The arrangement, saidthe committee, “does not impair or con-trol the independent professional judg-ment of referral attorneys, nor subjectthem to conflicting interests or dividedloyalties.” Id.2

In 1998, we concluded that althoughRule 7.1(b)(5), which subsequently wasremoved from the D.C. Rules, permitted

August 2015 THE DISTRICT OF COLUMBIA BAR 391

20The “predominant effect” prong is to be

applied narrowly, see D.C. Rule 8.5 cmt. [4];N.Y.S. Bar Ass’n Ethics Op. 1027 (2014), but weconclude that this fact pattern triggers it.

1Section 501(c)(3) exempts “[c]orporations,

and any community chest, fund, or foundation,organized and operated exclusively for religious,charitable, scientific, testing for public safety, liter-ary, or educational purposes . . . no part of the netearnings of which inures to the benefit of any pri-vate shareholder or individual, no substantial partof the activities of which is carrying on propagan-da, or otherwise attempting, to influence legislation. . . and which does not participate in, or intervenein (including the publishing or distributing of state-ments), any political campaign on behalf of (or inopposition to) any candidate for public office.”I.R.C. § 501(c)(3) (2015).

2A 1993 opinion observed that the prohibition

on fee-sharing was motivated in part by concern“that nonlawyers might control the activities oflawyers and interfere with the lawyers’ independentprofessional judgment.” D.C. Legal Ethics Op. 233(1993).

a lawyer to pay a non-lawyer for refer-ring business to the lawyer, “a payment toa nonlawyer for the referral of business,tied to the amount of revenue received bythe lawyer from the referred business”violated Rule 5.4(a) and was not permit-ted. D.C. Legal Ethics Op. 286 (1998).Opinion 286 applied generally to refer-rals and, unlike Opinion 201, was notlimited to payments to nonprofit organi-zations.

In 2001, we opined that D.C. Rule 5.4was not violated by a lawyer’s participa-tion in a federal General Services Admin-istration (GSA) program that engagedlawyers to represent federal agencies andthat required such lawyers to pay GSAone percent of fees received from suchagencies. D.C. Legal Ethics Op. 307(2001). The fees were used to fund GSA’soperation of the program. Id. We notedthat comment [6] to Rule 7.1 “distin-guishes between a ‘recognized or estab-lished agency or organization’ offering a‘lawyer referral program,’ to which alawyer may ‘pay the usual fees chargedby such programs,’ on the one hand, and‘payments to intermediaries to recom-mend the lawyer’s services’ . . . on theother.” Id. The concern about the lattertype of arrangement, we said, wasgrounded in the desire to “prevent[] non-lawyer intermediaries from using theirpower over lawyers who rely on them forbusiness referrals to influence thoselawyers’ ‘professional independence ofjudgment.’” Id. (citing D.C. Rule 5.4,cmt. [1]). The opinion described the for-mer type of referral arrangements—arrangements that “do not compromiselawyers’ independence” and involve rec-ognized or established agencies or organ-izations—as a “positive development,”but recognized that the D.C. Rules “areless clear than they could be on thisissue.” Id.; see D.C. Legal Ethics Op. 329(2005) (noting that the policy considera-tions underlying the Rule 5.4(a) prohibi-tion are “whether a proposedarrangement would interfere with alawyer’s independent judgment” and“whether refusing to permit the arrange-ment would result in fewer legalresources being available for those inneed of them”).

As of 2005, then, Rule 5.4(a), com-ment [6] to Rule 7.1, and Opinions 201,286, and 307 permitted fees to be dividedwith a non-lawyer on a percentage basisonly where the non-lawyer was a lawyerreferral service. At that time, there werefour exceptions to the prohibition of Rule5.4. None related to the inquiry at hand.In 2005, however, an additional excep-

tion was recommended by the D.C. Bar.See D.C. Bar Rules of Professional Con-duct Review Committee, ProposedAmendments to the District of ColumbiaRules of Professional Conduct: FinalReport and Recommendations 174-77(2005) (“Wortham Report”). This excep-tion was adopted by the D.C. Court ofAppeals, effective February 1, 2007, andprovides that—

a lawyer may share legal fees, whetherawarded by a tribunal or received in set-tlement of a matter, with a nonprofitorganization that employed, retained, orrecommended employment of thelawyer in the matter and that qualifiesunder section 501(c)(3) of the InternalRevenue Code.

D.C. Rule 5.4(a)(5). The fees covered bythis exception, namely those “awarded bya tribunal or received in settlement of amatter,” are limited to those “recoveredfrom the opposing party” in a “case[],”D.C. Rule 5.4, cmt. [11], and accordinglyare limited to fees arising from litigation.

The comment adopted along with Rule5.4(a)(5) recognizes that an arrangementwithin that subparagraph may involve fee-splitting but states that “the prospect . . .does not inherently compromise thelawyer’s professional independence . . . .A lawyer who has agreed to share legalfees with such an organization remainsobligated to exercise professional judg-ment solely in the client’s best interests.”D.C. Rule 5.4, cmt. [11]. The commentfurther notes that unlike the correspondingModel Rules provision, the D.C. Rule “isnot limited to sharing of fees awarded by acourt because that restriction would signif-icantly interfere with settlement of cases,without significantly advancing the pur-pose of the exception.” Id.

The question, then, is whether theadoption of Rule 5.4(a)(5) was intendedto repeal, sub silentio, the exception forthe “usual fees” of a “lawyer referral ser-vice” that are recognized by comment [6]of Rule 7.1 and by Opinions 201, 286,and 307. We think not.

There was no provision like subpara-graph (a)(5) in the D.C. Rules before2007 and no counterpart in the D.C. Codeof Professional Responsibility, whichwas in force prior to January 1, 1991.3

Importantly, the discussions in theWortham Report of proposed subpara-graph (a)(5) and of Rule 7.1 do not sug-

gest that adoption of the former wouldrepeal or even narrow the latter’s existingapproval of the payment of “usual fees”to lawyer referral programs. SeeWortham Report at 174-77, 190-95.

Although Rule 5.4(a)(5) is narrowerthan comment [6] to Rule 7.1 in the sensethat it is limited to fees derived from liti-gation matters, it is broader in that itapplies not only to lawyer referral pro-grams but to any non-profit organization.Moreover, Rule 5.4(a)(5) covers not onlypayments to the referring organizationfrom outside lawyers but also fromlawyers who are employed or retaineddirectly by the organization. By contrast,comment [6] to Rule 7.1 contemplatesonly payments by lawyers to whom mat-ters are referred by a lawyer referral ser-vice, and then only the “usual fees” ofsuch a service.

The Flat Payment from the lawyer tothe Service would not depend upon theamount of fees paid by the client to thelawyer. Hence the Flat Payment is not asharing of legal fees and does not violateRule 5.4(a). D.C. Legal Ethics Op. 342(2007); D.C. Legal Ethics Op. 286(1998).4 The Percentage Payment is apercentage of the fees earned by thelawyer for the representation. As such, itis permissible only if it either comeswithin subparagraph (a)(5) of Rule 5.4 oris a “usual fee[]” charged by a “lawyerreferral program,” as noted in comment[6] to Rule 7.1.

To the extent that matters referred by theService are not litigation matters, the Per-centage Payment is not authorized by Rule5.4(a)(5). This eliminates subparagraph(a)(5) as a potential basis for PercentagePayments outside the litigation context.

Therefore, the Percentage Payment ispermissible only if it satisfies therequirements of comment [6] to Rule7.1. That in turn leads to two inquiries—whether the Service is a “lawyer referralservice” and, if so, whether the Percent-age Payment is a “usual fee” of such anoperation.

The 2007 revision of the D.C. Ruleseliminated comment [6]’s references to“recognized or established agency ororganization” and “organized legal refer-ral program,” but we do not believe that achange in substance was intended. Thedeletion reflected the Wortham Report’srecommendation, which ultimately wasadopted by the D.C. Court of Appeals, to

392 THE DISTRICT OF COLUMBIA BAR August 2015

3A similar provision, limited to division of

court-awarded fees, was recommended by theABA’s Ethics 2000 Commission and was added tothe ABA Model Rules of Professional Conduct in2002. See ABA Model Rule 5.4(a)(4) (2015).

4We assume without deciding that at approxi-

mately $200, the Flat Payment would be reasonablewithin the meaning of the Rules. See D.C. Rule1.5(a).

eliminate the rule that permitted pay-ment to anyone—including individuals and for-profit entities—in exchange for referrals. See Wortham Report 190-95. By implication, only the types of refer-ral programs mentioned in the first sen-tence of this paragraph remain permissible under the post-2007 D.C. Rules.

Is the Service such a program? The D.C. Rules do not include express crite-ria for making that determination. TheModel Rules do offer such criteria, how-ever, and we agree with the consider-ations underlying Model Rule 7.2(b)(2),which is analogous to comment [6] toD.C. Rule 7.1. Model Rule 7.2 allows alawyer to pay the “usual charges” of “anot-for-profit . . . lawyer referral service.”ABA Model Rule 7.2(b)(2) (2015). Acomment describes lawyer referral ser-vices as “consumer-oriented organiza-tions that provide unbiased referrals tolawyers with appropriate experience inthe subject matter of the representationand afford other client protections, suchas complaint procedures or malpracticeinsurance requirements.” Id. cmt. [6].

The comment goes on to cite approv-ingly an ABA standard requiring that such services “not make referrals to law-yers who own, operate or are employed by the referral service.” Id.

We conclude that the Service will con-stitute a “lawyer referral service” within the meaning of comment [6] to D.C. Rule 7.1 if the Service—

• is generally open to D.C. Bar mem-bers who agree to its reduced-feeprerequisite, see ABA Model Rule7.2, cmt. [6];

• takes reasonable steps to ensurethat lawyers to whom matters arereferred are competent to handlesuch matters, see D.C. Rule 1.1;

• does not interfere with the lawyers’professional independence of judg-ment;

• requires only reasonable referralfees (a criterion that is met by itscurrent fifteen percent requirement),see D.C. Rule 1.5(a);

• requires that all lawyers in its net-work have reasonably adequatemalpractice insurance see ABAModel Rule 7.2, cmt. [6];

• has a neutral dispute resolutionmechanism, see id.; and

• does not refer matters to lawyerswho own, operate, manage, or areemployed by the Service, see id.

The second question is whether the Percentage Payment is a “usual fee.” Opinion 201 concluded that a non-profit public interest legal services project could receive a percentage (one sixth) of fees paid to attorneys to whom the project referred clients and who had agreed to charge reduced fees. D.C. Legal Ethics Op. 201 (1989); see D.C. Legal Ethics Ops. 286 (1998) and 307 (2001). Here, the percentage proposed to be remitted to the Service is fifteen percent, which of course is less than one sixth. Moreover, the Service is a 501(c)(3) entity. As noted in the D.C. Rules, see D.C. Rule 5.4(a), cmt. [1], and numerous prior opinions of this com-mittee, see, e.g., D.C. Legal Ethics Ops. 201 (1989), 286 (1998), 307 (2001), and 329 (2005), such entities are unlikely to impair or control the independent pro-fessional judgment of the attorneys to whom referrals are made.

Thus, we conclude that the Percentage Payment is a usual fee within the mean-ing of comment [6] to D.C. Rule 7.1.

Conclusion

Accordingly, we conclude that the D.C. Rules permit a lawyer to remit to the Service the Flat Payment and, if the Percentage Payment is within Rule 5.4(a)(5) or comment [6] to Rule 7.1, the Per-centage Payment as well.

Published July 2015

Opinion 370

Social Media I: Marketing and Per-sonal Use

Introduction

Social media and social network-ing websites are online communities that allow users to share informa-tion, messages, and other content, including photographs and videos. The Committee defines social media as follows:

Social media include any electronic platform through which people may communicate or interact in a public, semi-private or private way. Through blogs, public and private chat rooms, listservs, other online locations, social networks and websites such as Face-book, LinkedIn, Instagram, Twitter, Yelp, Angie’s List, Avvo and Law-yers.com, users of social media can share information, messages, e-mail, instant messages, photographs, video,

voice or videoconferencing content.1 This definition includes social net-works, public and private chat rooms, listservs, and other online locations where attorneys communicate with the public, other attorneys, or clients. Varying degrees of privacy may exist in these online communities as users may have the ability to limit who may see their posted content and who may post content to their pages.2

Increasingly, attorneys are using social media for business and personal reasons. The Committee wants to raise aware-ness of the benefits and pitfalls of the use of social media within the practice of law and to emphasize that the Dis-trict of Columbia Rules of Professional Conduct (the “Rules”) apply to attorneys in the District of Columbia (the “Dis-trict”) who use, or may use, social media for business or personal reasons.3 This Opinion applies to all attorneys who use social media, regardless of practice area or employer and applies regardless of whether the attorney engages in advertis-ing or client communications via social media. The Committee notes that any social media presence, even a personal

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1 “Content” means any communications, wheth-er for personal or business purposes, disseminated through websites, social media sites, blogs, chat rooms, listservs, instant messaging, or other inter-net presences, and any attachments or links related thereto.

2The Merriam-Webster Dictionary defines“social media” as “forms of electronic communica-tion … through which users create online communi-ties to share information, ideas, personal messages, and other content….” More specifically to the legal profession, the New York State Bar Association Committee on Professional Ethics, in its Formal Opinion No. 2012-2 (May 30, 2012), stated:

We understand “social media” to be services or websites people join voluntarily in order to interact, communicate, or stay in touch with a group of users, sometimes called a “network.” Most such services allow users to create personal profiles, and some allow users to post pictures and messages about their daily lives.

3We have previously addressed issues related toattorneys’ participation in certain kinds of internet and electronic communications, but have not yet addressed the broader uses of social media. In Opinion 316, we concluded that attorneys could take part in online chat rooms and similar arrange-ments through which they could engage in com-munications in real time or nearly real time, with internet users seeking legal information. D.C. Legal Ethics Op. 316 (2002). In Opinion 281, we addressed issues related to the use of unencrypted electronic mail. D.C. Legal Ethics Op. 281 (1998). In Opinion 302, we stated that lawyers could use websites to advertise for plaintiffs for class action lawsuits and use websites that offer opportunities to bid competitively on legal projects. D.C. Legal Ethics Op. 302 (2000).

page, could be considered advertising or marketing, and lawyers are cautioned to consider the Rules applicable to attor-ney advertising, even if not explicitly discussed below. Lawyers reviewing this Opinion may also wish to review Opinion 371 (Social Media II), which addresses use of social media by lawyers in providing legal services.

Social networking websites provide an online community for people to share daily activities, their interests in vari-ous topics, or to increase their circle of personal or business acquaintances. There are sites with primarily business purposes, some that are primarily for personal use and some that offer a variety of different uses. According to the 2014 ABA Legal Technology Survey, among attorneys and law firms, in addition to blogs, LinkedIn, Facebook and Twitter are among the more widely used social networks.4 On these sites, members cre-ate online “profiles,” which may include biographical data, pictures and other information that they wish to post. These services permit members to locate and invite other members of the network into their personal networks (to “connect” or “friend” them) or to invite the friends or contacts of others to connect with them.

Members of these online social net-working communities communicate in a number of ways, publicly or privately. Members of these online social network-ing communities may have the ability, in many instances, to control who may see their posted content, or who may post content to their pages. Varying degrees of privacy exist. These privacy settings allow users to restrict or limit access of information to certain groups, such as “friends,” “connections” or the “public.”

Social media sites, postings or activi-ties that mention, promote or highlight a lawyer or a law firm are subject to and must comply with the Rules.5 Attorneys who choose to use social media must adhere to the Rules in the same way that they would if using more traditional forms of communication.

The Rules, as well as previous Opin-ions of this Committee, apply to a

number of different social media or social networking activities that an attorney or law firm may be engaged in, including:

1. Connecting and communicatingwith clients, former clients or otherlawyers on social networking sites;

2. Writing about an attorney’s owncases on social media sites, blogsor other internet-publishing basedwebsites;

3. Commenting on or responding toonline reviews or comments;

4. Self-identification by attorneys oftheir own “specialties,” “skills” and“expertise” on social media sites;

5. Reviewing third-party endorsementsreceived by attorneys on their per-sonal or law firm pages; and,

6. Making endorsements of other attor-neys on social networking sites.

The Committee concludes that, gen-erally, each of the activities identified above are permissible under the Rules; but not without caution, as discussed in greater detail below. Consistent with our mandate, we consider only the applica-bility of the D.C. Rules of Professional Conduct. Given that social media does not stop at state boundaries, we remind members of the District of Columbia Bar that their social media presence may be subject to regulation in other jurisdic-tions, either because the District applies another state’s rules through its choice-of-law rule,6 or because other states assert jurisdiction over attorney conduct

without regard to whether the attorney is admitted in other states.7

Lawyers must be aware of the ethi-cal rules regarding social media in the principal jurisdiction where they prac-tice, consistent with Rule 8.5. However, adherence to the ethical rules in the juris-diction of one’s principal practice may not insulate an attorney from discipline. There is considerable variation in choice of law rules across jurisdictions. We spe-cifically wish to caution lawyers that the disciplinary rules of other jurisdictions, including our neighboring jurisdictions of Maryland and Virginia, allow for the imposition of discipline upon attorneys who are not admitted in that jurisdiction, if the lawyer provides or offers to provide any legal services in the jurisdiction. ABA Model Rule 8.5(b)(2) provides a limited safe harbor to this provision, by stating that “[a] lawyer shall not be sub-ject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s con-duct will occur.” We note, however, that not every state has adopted this safe har-bor. This Committee undertook a detailed evaluation of choice of law rules in non-judicial proceedings in Opinion 311.8

We explicitly note that this Opinion is limited to the use of social media as a communications device. This Opinion does not address issues related to the ethical use of social media in litigation or other proceedings, or with regard to issues related to advising clients on the use of social media. Those issues are addressed in Opinion 371 (Social Media II).

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4www.americanbar.org/publications/techre-port/2014/blogging-and-social-media.html (last vis-ited Oct. 26, 2016).

5The Committee further notes that even socialmedia profiles that are used exclusively for personal purposes might be viewed by clients or other third parties, and that information contained on those social media websites may be subject to the Rules of Professional Conduct. The Rules extend to purely private conduct of a lawyer, in areas such as truth-fulness and compliance with the law. See Rule 8.4.

6 In accordance with D.C. Rule 8.5(b), the Office of Disciplinary Counsel will apply the rules of another jurisdiction to an attorney’s conduct in two circumstances:

(1) For conduct in connection with a matterpending before a tribunal, the rules to beapplied shall be the rules of the jurisdiction in which the tribunal sits, unless the rules of thetribunal provide otherwise, and

(2) For any other conduct,

(ii) If the lawyer is licensed to practicein this and another jurisdiction, therules to be applied shall be the rulesof the admitting jurisdiction in whichthe lawyer principally practices; pro-vided, however, that if particular con-duct clearly has its predominant effectin another jurisdiction in which thelawyer is licensed to practice, the rulesof that jurisdiction shall be applied tothat conduct.

Note that, in contrast to ABA Model Rule 8.5 (see infra note 7), D.C. Rule 8.5 does not provide for jurisdiction over attorneys not admitted to prac-tice in the District and does not apply the rules of another jurisdiction unless the attorney is either practicing before a tribunal in another jurisdiction, or is licensed to practice in another jurisdiction.

7In contrast to D.C. Rule 8.5 (discussed supra in note 6), ABA Model Rule 8.5(a) states that “[a] lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdic-tion if the lawyer provides or offers to provide any legal services in this jurisdiction.” Moreover, ABA Model Rule 8.5(b)(2) states that for conduct not in connection with a matter pending before a tribunal, the rules to be applied are “the rules of the jurisdic-tion in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a differ-ent jurisdiction, the rules of that jurisdiction shall be applied to the conduct.” Accordingly, Model Rule 8.5(b)(2), unlike D.C. Rule 8.5(b)(2), may result in the application of rules of jurisdictions to which the lawyer is not admitted.

8D.C. Legal Ethics Op. 311 (2002). The revi-sions to Rule 8.5(b)(1) that became effective on February 1, 2007 have modified Opinion 311 to the extent that the Opinion now applies more broadly to conduct in connection with a “matter pending before a tribunal” rather than only in connection with a “proceeding in a court before which a lawyer has been admitted to practice.” These revisions, however, do not change this Committee’s analysis in Opinion 311 as to “other conduct” under Rule 8.5(b)(2).

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Applicable RulesThe Rules that are potentially impli-

cated by social media include:

• Rule 1.1 (Competence)• Rule 1.6 (Confidentiality of Infor-

mation)• Rule 1.7 (Conflict of Interest: Gen-

eral)• Rule 1.18 (Duties to Prospective

Client)• Rule 3.3 (Candor to Tribunal)• Rule 5.1 (Responsibilities of Part-

ners, Managers, and Supervisory Law-yers)

• Rule 5.3 (Responsibilities Regard-ing Non-Lawyer Assistants)

• Rule 7.1 (Communications Con-cerning a Lawyer’s Services)

• Rule 8.4 (Misconduct)• Rule 8.5 (Disciplinary Authority;

Choice of Law)

Discussion

I. Social Media in GeneralThe guiding principle for lawyers with

regard to the use of any social network site is that they must be conversant in how the site works. Lawyers must understand the functionality of the social network-ing site, including its privacy policies. Lawyers must understand the manner in which postings on social media sites are made and whether such postings are public or private. Indeed, comment [6] to Rule 1.1 (Competence) provides:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, and engage in such continuing study and education as may be necessary to maintain competence.

As discussed in more detail herein, lawyers must be cognizant of the ben-efits and risks of the use of social media and their postings on social media sites. Social networking sites, and social media in general, make it easier to blur the dis-tinctions between communications that are business and those that are personal. Communications via social media are inherently less formal than more tradi-tional or established forms of communi-cation. Lawyers and law firm employees must be reminded of the need to maintain confidentiality with regard to clients and client matters in all communications. It is recommended that all law firms have a policy in place regarding employees’ use of social networks. Lawyers in law firms have an ethical duty to supervise subor-dinate lawyers and non-lawyer staff to

ensure that their conduct complies with the applicable Rules, including the duty of confidentiality. See Rules 5.1 and 5.3.

Content contained on a lawyer’s social media pages must be truthful and not misleading. Statements on social media could expose an attorney to charges of dishonesty under Rule 8.4 or lack of can-dor under Rule 3.3, if the social media statements conflict with statements made to courts, clients or other third parties, including employers. Similarly, state-ments on social media could expose a lawyer to civil liability for defamation, libel or other torts.

II. Permissible Uses of Social MediaA. Attorneys may connect with andcommunicate with clients, formerclients or other lawyers on socialnetworking sites, but not withoutcaution.There are no provisions of the Rules

that preclude a lawyer from participating in social media or other online activities. However, if an attorney connects with, or otherwise communicates with clients on social networking sites, then the attorney must continue to adhere to the Rules and maintain an appropriate relationship with clients. Lawyers must also be aware that, if they are connected to clients or former clients on social media, then content made by others and then placed on the attorney’s page and content made by the attorney may be viewed by these clients and former clients. Attorneys should be mindful of their obligations under Rule 1.6 to maintain client confidences and secrets.

Some social networking sites, like Facebook, offer users the option to restrict what some people may see on a user’s page. These options also allow a user to determine who may post content publicly on the lawyer’s page. It is advisable for lawyers to periodically review these set-tings and adjust them as needed to man-age the content appearing publicly on the lawyer’s social media pages. Attorneys should be aware of changes to the poli-cies of the sites that they utilize, as pri-vacy policies are frequently changed and networks may globally apply changes, pursuant to the updated policies.

i. Avoiding the formation of an inad-vertent attorney-client relationship

As we opined in Opinion 316, it is permissible for lawyers to participate in online chat rooms and similar arrange-ments through which attorneys could engage in real time, or nearly real time communications with internet users.

However, that permission was caveated with the caution to avoid the provision of specific legal advice in order to pre-vent the formation of an attorney-client relationship. In Opinion 302, we pro-vided “best practices” guidance on inter-net communications, with the intent of avoiding the inadvertent formation of an attorney-client relationship. One of the suggested “best practices” included the use of a prominent disclaimer. Id. How-ever, we have reiterated “that even the use of a disclaimer may not prevent the formation of an attorney-client relation-ship if the parties’ subsequent conduct is inconsistent with the disclaimer.” D.C. Ethics Op. 316.

These same principles are applicable to the use of social media. Disclaim-ers are advisable on social media sites, especially if the lawyer is posting legal content or if the lawyer may be engaged in sending or receiving messages from “friends,” whether those friends are other attorneys, family or unknown visitors to the lawyer’s social media page, when those messages relate, or may relate, to legal issues.9

Rule 1.18 imposes a duty of confiden-tiality with regard to a prospective client, who is defined in Rule 1.18(a) as “a per-son who discusses … the possibility of forming a client-lawyer relationship with respect to a matter.” However, comment [2] to Rule 1.18 notes that “[a] personwho communicates information unilater-ally to a lawyer, without any reasonableexpectation that the lawyer is willing todiscuss the possibility of forming a client-lawyer relationship, is not a ‘prospectiveclient’ within the meaning of [the Rule].”The guidance of Rule 1.18 is of particularimportance in social networking, wherelawyers may self-identify themselves asattorneys and where, most likely, those“connected” to the lawyer will be aware

9As we discussed in Opinion 302, in the Dis-trict of Columbia, the question of what conduct gives rise to an attorney-client relationship is a matter of substantive law. Neither a retainer nor a formal agreement is required in order to establish an attorney-client relationship in the District of Columbia. See, e.g. In re Lieber, 442 A.2d 153 (D.C. 1982) (attorney-client relationship formed where attorney failed to indicate lack of consent to accept a court appointed client after receiving notification of appointment by mail). Further, even casual legal advice can give rise to an attorney-client relationship if the putative client relies upon it. See, e.g., Togstad v. Vesely, Otto, Miller & Keffe, 291 N.W.2d 686 (Minn. 1980) (finding an attorney-client relationship where the attorney stated that he did not think a prospective client had a cause of action but would discuss it with his partner, did not call prospective client back, and prospective client relied on attorney’s assessment and did not continue to seek legal representation).

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that the user is an attorney; however, without more, the mere knowledge that a friend is an attorney does not give rise to a reasonable expectation that interac-tions with that attorney would create a prospective or actual client relationship, or its attendant duty of confidentiality.

ii. Avoiding the creation of conflicts ofinterest

Consideration must also be given to avoid the acquisition of uninvited infor-mation through social media sites that could create actual or perceived conflicts of interest for the lawyer or the lawyer’s firm. Caution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict. Rule 1.7(b)(4) states that an attorney shall not represent a client with respect to a matter if “the lawyer’s pro-fessional judgment on behalf of the client will be or reasonably may be adversely affected by . . . the lawyer’s own finan-cial, business, property or personal inter-ests,” unless the conflict is resolved in accordance with Rule 1.7(c). Content of social media posts made by attorneys may contain evidence of such conflicts.

Moreover, online communications and interactions with people who are unknown to the lawyer may unintention-ally cause the development of relation-ships with persons or parties who may have interests that are adverse to those of existing clients.

iii. Protecting client confidences andsecrets

Protecting client information is of the utmost importance when using social media. Most attorneys are aware of the importance of protecting attorney-client communications, attorney work-product or other privileged information. The obligation to protect this information extends beyond the termination of the attorney-client relationship.

Rule 1.6 distinguishes between infor-mation that is “confidential” and that which is a “secret,” and requires attor-neys to protect both kinds of information. In the District of Columbia,

“Confidence” refers to information pro-tected by the attorney-client privilege under applicable law. “Secret” refers to other information gained in the profes-sional relationship that the client has requested be held inviolate, or the dis-closure of which would be embarrass-ing, or would be likely to be detrimental, to the client.

Rule 1.6(b). Comment [8] to Rule 1.6 makes clear that the Rule potentially applies to all information gained in the course of the professional relationship, and exists without regard to the nature or source of the information, or the fact that others share the knowledge.

No less critical are considerations of the level of confidentiality available on the social media sites themselves. If an attorney uses social media to commu-nicate with potential or actual clients or co-counsel, then careful attention must be paid to issues of privacy and confi-dentiality. It is critically important that lawyers review the policies of the social media sites that they frequent, particu-larly policies related to data collection. Privacy settings on social media are not the equivalent of a guarantee of confi-dentiality.

Particular consideration must be given to the issue of maintaining and protecting the confidentiality of communications on social networking sites.10 Messaging and electronic mail services provided by social networking sites may lack safe-guards sufficient for communicating with clients or prospective clients. Moreover, the messaging and electronic mail ser-vices provided by these sites should not be assumed to be confidential or private. Therefore, when appropriate, clients or potential clients should be advised by lawyers of the existence of more secure means of communicating confidential, privileged, sensitive or oth-erwise protected information. Messages with clients that are sent or received via social networks must be treated with the same degree of reasonable care as messages sent or received via electronic mail or other traditional means of com-munication. Social media sites may not permanently retain messages or other communications; therefore care should be taken to preserve these communica-tions outside of the social media site, in order to ensure that the communications are maintained as part of the client file. It is advisable that communications regard-ing on-going representations or pending legal matters be made through secured office e-mail, and not through social media sites.

Certain social media sites collect infor-mation about the people and groups that the user is connected to and the interac-tions with that group or person. The information collected is gathered from both the lawyer and the person commu-nicating with the lawyer and can include

content, information and frequency of contact.11 These sites also collect infor-mation about uses of their partner prod-ucts and/or websites, allowing the social media service to collect and integrate information about its users, which can be used for targeted advertising and/or research purposes.12 Thus, depending on the intended use of the social media site, it is advisable for a lawyer to give care-ful consideration to which social media sites, if any, may be more appropriate for business-related uses or for communica-tions with potential or actual clients.

When inviting others to view a law-yer’s social media site, or profile, a lawyer must be mindful of the ethical restrictions relating to solicitations and other communications. Most social net-working sites require an e-mail address from the user as part of the registration process. Then, once the social network-ing site is accessed by a lawyer, the site may access the entire address book (or contacts list) of the user. Aside from any data collection purposes, this access allows the social media site to suggest potential connections with people the lawyer may know who are already members of the social network, to send requests or other invitations to have these contacts connect with the lawyer on that social network, or to invite non-members of the social network to join it and connect with the lawyer.

However, in many instances, the peo-ple contained in a lawyer’s address book or contact list are a blend of personal and professional contacts. Contact lists fre-quently include clients, opposing coun-sel, judges and others whom it may be impermissible, inappropriate or poten-tially embarrassing to have as a con-nection on a social networking site. The connection services provided by many social networks can be a good marketing and networking tool, but for attorneys, these connection services could poten-tially identify clients or divulge other information that a lawyer might not want an adversary or a member of the judiciary to see or information that the lawyer is obligated to protect from disclosure. Accordingly, great caution should be exercised whenever a social networking

10See also D.C. Legal Ethics Op. 281.

11An example is contained in Facebook’s datapolicy. (https://www.facebook.com/about/privacy/) (last visited Oct. 26, 2016).

12Miller, C., The Plus in Google Plus? It’sMostly for Google, Feb. 14, 2014 http://www.nytimes.com/2014/02/15/technology/the-plus-in-google-plus-its-mostly-for-google.html?_r=0 (last visited Oct. 26, 2016).

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site requests permission to access e-mail contacts or to send e-mail to the people in the lawyer’s address book or contact list and care should be taken to avoid inad-vertently agreeing to allow a third-party service access to a lawyer’s address book or contacts.

B. Attorneys may write about theirown cases on social media sites, blogsor other internet-based publications,with the informed consent of theirclients.The scope of the protections pro-

vided in Rule 1.6 militates in favor of prudence when it comes to disclosing information regarding clients and cases. While lawyers may ethically write about their cases on social media, lawyers must take care not to disclose confiden-tial or secret client information in social media posts. Rule 1.6(e)(1) states that a lawyer may use a client’s confidences and secrets for the lawyer’s own ben-efit or that of a third party only after the attorney has obtained the client’s informed consent to the use in ques-tion. Because Rule 1.6 extends to even information that may be known to other people, the prudent lawyer will obtain client consent before sharing any infor-mation regarding a representation or disclosing the identity of a client. Even if the attorney is reasonably sure that the information being disclosed would not be subject to Rule 1.6, it is prudent to obtain explicit informed client con-sent before making such posts. With or without client consent, attorneys should exercise good judgment and great cau-tion in determining the appropriateness of such posts. Consideration should be given to the identity of the client and the sensitivity of the subject matter, even if the client is not overtly identified. It is advisable that the attorney share a draft of the proposed post or blog entry with the client, so there can be no miscom-munication regarding the nature of the content that the attorney wishes to make public. It is also advisable, should the client agree that the content may be made public, that the attorney obtain that client consent in a written form.

Consideration must also be given to ensure that such disclosures on social media are compliant with Rule 7.1. Rule 7.1 governs all communications about a lawyer’s services, including advertis-ing. These Rules extend to online writings, whether on social media, a blog or other internet-based publica-tion, regarding a lawyer’s own cases. Such communications are subject to

the Rules because they have the capac-ity to mislead by creating the unjusti-fied expectation that similar results can be obtained for others. Care must be taken to avoid material misrepresenta-tions of law or fact, or the omission of facts necessary to make the statement considered as a whole not materially misleading. Accordingly, social media posts regarding a lawyer’s own cases should contain a prominent disclaimer making clear that past results are not a guarantee that similar results can be obtained for others.

Law firms that have blogs or social media sites or that allow their lawyers to maintain their own legal blogs or social media pages should take appropri-ate steps to ensure that such content is compliant with the Rules, consistent with the duties set forth in Rule 5.1. Non-attorney employees who create content for their own or their employers’ social media sites should be educated regard-ing the protection of client information and, if appropriate, be supervised by their employing law firm or lawyer, as required by Rule 5.3.13

As noted above, all social media post-ings for law firms or lawyers, including blogs, should contain disclaimers and privacy statements sufficient to convey to prospective clients and visitors that the social media posts are not intended to convey legal advice and do not create an attorney-client relationship.

C. Attorneys may, with caution,respond to comments or onlinereviews from clients.The ability for clients to place reviews

and opinions of the services provided by their counsel on the internet can present challenges for attorneys. An attorney must monitor his or her own social net-working websites, verify the accuracy of information posted by others on the site, and correct or remove inaccurate information displayed on their social media page(s). As set forth in comment [1] to Rule 7.1, client reviews that maybe contained on social media posts orwebpages must be reviewed for compli-ance with Rule 7.1(a) to ensure that theydo not create the “unjustified expectation

that similar results can be obtained for others.”14

Attorneys may respond to negative online reviews or comments from clients. However, Rule 1.6 does not provide complete safe harbor for the disclosure of client confidences in response to a negative internet review or opinion. Rule 1.6(e) states that:

A lawyer may use or reveal client confi-dences or secrets:

(3) to the extent reasonably necessary toestablish a defense to a criminal charge,disciplinary charge, or civil claim, for-mally instituted against the lawyer,based upon conduct in which the clientwas involved, or to the extent reason-ably necessary to respond to specificallegations by the client concerning thelawyer’s representation of the client[emphasis added].

Thus, the lawyer’s ability to reveal confidences under Rule 1.6(e)(3) is lim-ited to only “specific” allegations by the client concerning the lawyer’s represen-tation of the client. Comment [25] to Rule 1.6 specifically excludes general criticisms of an attorney from the kinds of allegations to which an attorney may respond using information otherwise pro-tected by Rule 1.6. However, even when the lawyer is operating within the scope of the Rule 1.6(e)(3) exception, the com-ments to Rule 1.6 caution that disclosures should be no greater than the lawyer reasonably believes are necessary. There is no exception in Rule 1.6 that allows an attorney to disclose client confidences or secrets in response to specific or general allegations regarding an attorney’s con-duct contained in an online review from a third party, such as opposing counsel or a non-client.15

Other jurisdictions have taken a more restrictive view of responding to com-ments or reviews on lawyer-rating web-sites. For example, the New York State Bar Association Committee on Professional Ethics, in its Opinion 1032 (2014), held that “[a] lawyer may not disclose confidential client informa-

13See, e.g., Gene Shipp, Bar Counsel: 20/20:The Future of the Rules of Professional Conduct, Washington LaWyer (June 2013), sharing the example that our world is changing so fast that “a high-profile celebrity, who comes to your office on a highly confidential matter and graciously pauses to allow a picture with your receptionist, may be unhappy with your staff’s violation of Rule 1.6 when their picture appears on the Internet even before you have had a chance to say hello.”

14The Committee does not distinguish betweenclient comments that are solicited and those that are unsolicited. Rule 7.1 governs all communications about a lawyer’s services.

15Although beyond the scope of this Opinion,the Committee notes that the Rule 1.6(e)(3) excep-tion allows an attorney to respond to wrongs alleged by a third party, but only if the third party has formally instituted a civil, criminal or disciplinary action against the lawyer. See comments [23] and [24] to Rule 1.6.

398 THE DISTRICT OF COLUMBIA BAR November 2016

tion solely to respond to a former cli-ent’s criticism of the lawyer posted on a [lawyer-rating website].” The New York analysis turned on the language contained in New York’s Rule 1.6, which requires “accusations,” rather than allegations, in order to trigger the “self-defense” exception of N.Y. Rule 1.6. Attorneys licensed in the District of Columbia who are admitted to practice in multiple jurisdictions are cautioned that they may be subject to the disci-plinary authority of both this jurisdic-tion and another jurisdiction where the lawyer is admitted for the same conduct. Under the District’s choice of law rule, Rule 8.5(b)(2)(ii),

the rules to be applied shall be the rules of the admitting jurisdiction in which the lawyer principally practices; pro-vided, however, that if particular con-duct clearly has its predominant effect in another jurisdiction in which the lawyer is licensed to practice, the rules of that jurisdiction shall be applied to that conduct.

See notes 6 and 7, infra.16

We recognize that there are limita-tions on the control that any individual can assert over his or her presence on the internet. That is why we recog-nize that an attorney’s ethical obliga-tions to review and regulate content on social media extends only to those social media sites or webpages for which the attorney maintains control of the content, such as the ability to delete posted content, block users from posting, or block users from viewing. However, notwithstanding the scope of the attorney’s affirmative obligations, it is highly advisable for attorneys to be aware of content regarding them on the internet.

D. An attorney or law firm may identify “specialties,” “skills” and “expertise” on social media, pro-vided that the representations are not false or misleading.Many social media sites, like Linke-

dIn, allow attorneys to identify skills and areas of practice. The District of Colum-bia does not prohibit statements regarding specialization or expertise. Accordingly, District of Columbia attorneys are ethi-cally permitted to identify their skills, expertise and areas of practice, subject to Rule 7.1(a).17

As we previously opined in Opinion 249, “Rule 7.1(a) permits truthful claims of lawyer specialization so long as they can be substantiated.” Rule 7.1(a) states that an attorney is prohibited from mak-ing a “false or misleading communication about the lawyer or the lawyer’s services.” The relevant comment [1] to this Rule states that “[i]t is especially important that statements about a lawyer or the lawyer’s services be accurate, since many members of the public lack detailed knowledge of legal matters.” Accordingly, we conclude that social media profiles or pages that include statements by the attorney setting forth an attorney’s skills, areas of special-ization or expertise are subject to Rule 7.1(a) and, therefore, cannot be false or misleading.

E. Attorneys must review their social media presence for accuracy.Consistent with the goals of network-

ing, marketing and making connections, some social networking sites permit members of the site to recommend fel-low members or to endorse a fellow member’s skills. Users may also request that others endorse the lawyer for speci-fied skills that the lawyer has indicated he or she possesses. LinkedIn and other sites also allow clients or others to sub-mit written reviews or recommendations of the lawyer. Other legal-specific social networking sites focus exclusively on endorsements or recommendations. It is our view that a lawyer is ethically per-mitted, with caution, to recommend other attorneys, and to accept endorsements, written reviews and recommendations, subject to the Rules.

As noted above, it is our opinion that lawyers in the District of Columbia have a duty to monitor their social network sites. If a lawyer controls or maintains the content contained on a social media page, then the lawyer has an affirmative obligation to review the content on that page. A lawyer must remove endorse-ments, recommendations or other content that are false or misleading. Lawyers are advised that it is appropriate to reject or refuse endorsements from people who lack the knowledge necessary for mak-ing the recommendation. It would be misleading for an attorney to display rec-ommendations or endorsements of skills that are received from people who do not have a factual basis to evaluate the lawyer’s skills. Lawyers must reject or refuse endorsements that indicate that the lawyer possesses skills or exper-tise that the lawyer does not possess. It would be misleading for an attorney to display a recommendation that con-tained incorrect information. The opera-tive questions asked by the lawyer when reviewing endorsements or recommenda-tions received on their social media pages should be whether the person making the endorsement knows the lawyer and whether the person can fairly comment on the lawyer’s skills.

We recommend that lawyers who are using social media sites that allow for the review of posts, recommendations or endorsements prior to publication avail themselves of the settings that allow review and approval of such informa-tion before it is publicized on the law-yer’s social media page. Some sites, like LinkedIn, provide settings that allow the user to review and approve endorsements that are received before the endorse-ments are posted publicly. Users may also choose to keep endorsements hid-den so that they are not seen by others.18

Other social networking sites, like Face-book, allow users to adjust their privacy settings to require user approval before certain content, such as photos, can be displayed on a user’s home page. Some social media sites allow users to adjust their privacy settings to require approval before a user can be “tagged,” a practice that allows content on another person’s page to be displayed on the user’s page.

16 Other jurisdictions have sanctioned attorneys for disclosures of client confidences or secrets on social media or other websites. In 2013, the Hear-ing Board of the Illinois Attorney Registration and Disciplinary Commission held, in the Matter of Betty Tsamis, that it was a violation of Rule 1.6(a) for an attorney to respond to an unfavorable review on the legal referral website AVVO with a response that revealed confidential information about the cli-ent’s case. In Tsamis, the attorney first requested that the client remove the posting from the website, which is also a permissible response in the District of Columbia. The client responded that he would remove the post, but only if the attorney returned his files and refunded his fees. Thereafter, AVVO removed the posting from its online client reviews. The client then posted a second negative client review to the same website, which the attorney responded to, disclosing client information. The Hearing Board found that the response exceeded what was necessary to respond to the client’s accu-sations and a reprimand was recommended.

17Prudent attorneys should consider the most restrictive rules applicable to them when using self-promotional features on social media. We note that other jurisdictions, like New York, do not permit lawyers to identify themselves as “specialists” unless they have been certified as such by an appro-priate organization. They are, however, permitted to detail their skills and experience. See N.Y. Cnty. Lawyers Ass’n Comm. on Prof’l Ethics, Op. 748 (Mar. 10, 2015).

18Lawyers are advised to review the guidance provided by other jurisdictions in which they are admitted to practice regarding the use of endorse-ments or the skills and expertise sections in a Linke-dIn profile. See, e.g., Maryland State Bar Ass’n, Comm. on Ethics, Ethics Docket No. 2014-05; Philadelphia Bar Ass’n, Prof’l Guidance Comm., Op. 2012-8 (Nov. 2012); South Carolina Ethics Advisory Comm., Op. 09-10; see also note 17.

November 2016 THE DISTRICT OF COLUMBIA BAR 399

It is suggested that lawyers, particu-larly those who do not frequently monitor their social media pages, those who may not know everyone in their networks well, or those who wish to have an added layer of protection, utilize these height-ened privacy settings. Aside from the potential ethical issues discussed herein, there are many good reasons for a lawyer to want to maintain a higher level of con-trol over what content others may place on a lawyer’s social media page(s).

It is permissible under the Rules for a lawyer to make an endorsement or rec-ommendation of another attorney on a social networking site, provided that the endorsement or recommendation is not false or misleading. Such endorsements and recommendations must be based upon the belief that the recipient of the endorsement does in fact possess said skills or legal acumen. Rule 8.4(c) pro-hibits an attorney from being dishonest, or engaging in fraud, deceit or misrepre-sentation. Therefore, a lawyer must only provide an endorsement or recommenda-tion of someone on social media that the endorsing lawyer believes to be justified.

Rule 8.4(a) states that it is misconduct for a lawyer to violate or to attempt to violate ethics rules through the acts of others. Thus, clients and colleagues cannot say things about the lawyer that the lawyer cannot say. The lawyer’s obligation to monitor, review and correct content on social media sites for which they maintain control exists regardless of whether the information was posted by the attorney, a client or a third party.

We reiterate that, for websites or social media sites where the attorney does not have editorial control over content or the postings of others, we do not believe that the Rules impose an affirmative duty on a lawyer to monitor the content of the sites; however, under certain circumstances, it may be appropriate for the attorney to request that the poster remove the con-tent, to request that the social networking site remove the content, or for the attor-ney to post a curative response address-ing the inaccurate content.

V. ConclusionSocial media is a constantly chang-

ing area of technology. Social media can be an effective tool for providing information to the public, for networking and for communications. However, using such tools requires that the lawyer main-tain and update his or her social media pages or profiles in order to ensure that information is accurate and adequately protected.

Accordingly, this Committee con-cludes that a lawyer who chooses to maintain a presence on social media, for personal or professional reasons, must take affirmative steps to remain compe-tent regarding the technology being used and to ensure compliance with the appli-cable Rules of Professional Conduct.

The world of social media is a nascent area that continues to change as new technology is introduced into the market-place. Best practices and ethical guide-lines will, as a result, continue to evolve to keep pace with such developments.

Published November 2016

Opinion 371

Social Media II: Use of Social Media in Providing Legal Services

Introduction

Information posted on social media and use of social media in the substan-tive practice of law raise multiple issues under the Rules of Professional Conduct in all practice areas. This Opinion pro-vides the Committee’s guidance about advice and conduct by lawyers related to social media in the provision of legal ser-vices, including whether certain advice and conduct are required, permitted, or prohibited by the Rules. The Opinion also identifies issues for lawyers to spot as they provide legal services. Opinion 370 (Social Media I) addresses lawyers’ use of social media in marketing and personal use.

The Committee defines social media as follows:

Social media include any electronic platform through which people may communicate or interact in a public, semi-private, or private way. Through blogs, public and private chat rooms, listservs, other online locations, social networks, and websites such as Face-book, LinkedIn, Instagram, Twitter, Yelp, Angie’s List, Avvo, and Lawyers.com, users of social media can share information, messages, e-mail, instant messages, photographs, video, voice, or videoconferencing content.1 This defini-tion includes social networks, public and private chat rooms, listservs, and other online locations where attorneys com-

municate with the public, other attor-neys, or clients. Varying degrees of privacy exist in these online communi-ties as users may have the ability to limit who may see their posted content and who may post content to their pages.2

Applicable Rules• Rule 1.1 (Competence)• Rule 1.2 (Scope of Representation)• Rule 1.3 (Diligence and Zeal)• Rule 1.4 (Communication)• Rule 1.6 (Confidentiality of Infor-

mation) • Rule 3.1 (Meritorious Claims and

Contentions)• Rule 3.3 (Candor to Tribunal)• Rule 3.4 (Fairness to Opposing

Party and Counsel) • Rule 3.5 (Impartiality and Decorum

of the Tribunal) • Rule 3.6 (Trial Publicity)• Rule 3.8 (Special Responsibilities of

a Prosecutor) Rule 4.1 (Truthfulness in Statements to Others)

• Rule 4.2 (Communication BetweenLawyer and Person Represented by Counsel)

• Rule 4.3 (Dealing with Unrepre-sented Person)

• Rule 4.4 (Respect for Rights ofThird Persons)

• Rule 5.1 (Responsibilities of Part-ners, Managers, and Supervisory Law-yers)

• Rule 5.3 (Responsibilities Regard-ing Nonlawyer Assistants)

• Rule 8.4 (Misconduct)

I. Understanding Social MediaBecause the practice of law involves

use or potential use of social media in many ways, competent representation under Rule 1.13 requires a lawyer to understand how social media work and

1 “Content” means any communication, whetherfor personal or business purposes, disseminated through websites, social media sites, blogs, chat rooms, listservs, instant messaging, or other inter-net presences, and any attachments or links related thereto.

2 The Merriam-Webster Dictionary defines“social media” as “forms of electronic communica-tion … through which users create online communi-ties to share information, ideas, personal messages, and other content….” More specifically to the legal profession, the New York State Bar Association Committee on Professional Ethics, in its Formal Opinion No. 2012-2 (May 30, 2012), stated:

We understand “social media” to be services or websites people join voluntarily in order to interact, communicate, or stay in touch with a group of users, sometimes called a “network.” Most such services allow users to create per-sonal profiles, and some allow users to post pictures and messages about their daily lives.

3 Rule 1.1(a) states:A lawyer shall provide competent representa-tion to a client. Competent representation requires the legal knowledge, skill, thorough-ness, and preparation reasonably necessary for the representation.

400 THE DISTRICT OF COLUMBIA BAR November 2016

how they can be used to represent a client zealously and diligently4 under Rule 1.3.5 Recognizing the pervasive use of social media in modern soci-ety, lawyers must at least consider whether and how social media may benefit or harm client matters in a variety of circumstances. We do not advise that every legal representation requires a lawyer to use social media. What is required is the ability to exer-cise informed professional judgment reasonably necessary to carry out the representation. Such understanding can be acquired and exercised with the assistance of other lawyers and staff.6

We agree with ABA Comment [8] to Model Rule 1.1 that to be competent “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Although the Dis-trict’s Comments to Rule 1.1 do not specifically reference technology, com-petent representation always requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to carry out the representation. Because of soci-ety’s embrace of technology, a lawyer’s ignorance or disregard of it, including social media, presents a risk of ethical misconduct.

Similarly, the requirement of D.C. Rule 1.3(b)(1) to “seek the lawful objectives of a client through reason-ably available means” may require that a lawyer utilize social media if it would assist zealous and diligent representation. In using social media for representation, however, a law-yer must at all times stay within the “bounds of the law,”7 including for example the general prohibition on misrepresentation by pretexting and

the duty of truthfulness discussed in this and other Opinions.8

II. Communication with ClientsThe duty to maintain client confi-

dences under Rule 1.6,9 the duty to provide competent representation under Rule 1.1, and the duty to communicate with clients under Rule 1.410 are all implicated by lawyer-client social media communication. Because social media communication often is public or semi-public, confidentiality of lawyer-client communication is an important concern.

Protecting the confidentiality of law-yer-client communication under Rule 1.6 requires a lawyer to understand in particular how non-clients can access client social media communication and postings.11 For example, social media sites usually have a range of privacy settings, and clients may give others access to content posted behind private settings. In addition, site privacy settings can unexpectedly change with new terms and conditions imposed by the site host. Rules 1.1, 1.4 and 1.6 may require12 that a lawyer advise clients about how non-client access to posted information about legal matters risks inappropriate disclosure of the information, waiver of

the attorney-client privilege, and loss of litigation work-product protection.13 See, e.g., Lenz v. Universal Music Corp., in which the plaintiff “made comments in emails and electronic ‘chats’ with friends, [and] postings on her blog,” which com-ments disclosed her discussions with coun-sel. 14 The Court held that the emails and chats waived the attorney-client privilege regarding the matters discussed.

A lawyer should consider reaching agreement with clients about how their attorney-client communication will occur, including whether or not social media should ever be used for such com-munication because of the confidentiality risks. Agreements about these subjects could be included in engagement letters.

III. Social Media as Sources of Infor-mation about Cases or Matters

Social media have become sources of relevant information in litigation and other adversarial proceedings, as well as in a broad array of transactional and advisory practices, including regulatory work.

A. Client Social MediaRules 1.1 and 1.3 require a lawyer to

consider the potential risks and benefits that client social media could have on litigation, regulatory, and transactional matters undertaken by the lawyer, and Rule 1.4 requires a lawyer to discuss such risks and benefits with clients.15

1. Review by Client’s LawyerCompetent and zealous representation

under Rules 1.1 and 1.3 may require law-yer review of client social media postings relevant to client matters.16 In litiga-tion, client social media postings could be inconsistent with claims, defenses, pleadings, filings, or litigation/regulatory positions. For example, if a client initi-ated an action claiming serious injuries, the client’s social media profile could disclose activity inconsistent with the injuries alleged.17 A lawyer must address

4 See, e.g., N.Y. State Bar Ass’n Social Media Comm., Social Media Ethics Guidelines of the Commercial and Federal Litigation Section (2015) (“NYSBA Guidelines”); American Bar Ass’n Standing Comm. on Ethics & Prof’l Responsibil-ity, Formal Op. 466 (2014) (“ABA Op. 466”); N.C. State Bar, Formal Ethics Op. 2014-5 (revised 2015) (“N.C. Op. 2014-5”); Pa. Bar Ass’n, Formal Op. 2014-300 (“Pa. Op. 2014-300”). See generally D.C. Bar Legal Ethics Op. 281 (1998) (noting in an early internet-related opinion about confidentiality risks from e-mail communication that it was important to understand how e-mails actually traveled over the internet).

5 Rule 1.3(a) states:A lawyer shall represent a client zealously and diligently within the bounds of the law.

6 See ModeL ruLes of Prof’L ConduCt r. 1.1 cmt. 2 (aM. Bar ass’n 2014).

7 See supra note 5.

8 See generally D.C. Legal Ethics Op. 323 (2004) and other Opinions addressing application of D.C. Rule 8.4(c).

9 Rule 1.6(a) and (b) states in part:(a) Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly:

(1)[R]eveal a confidence or secret of the lawyer’s client; . . . .

(b) “Confidence” refers to information pro-tected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional rela-tionship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.

10 Rule 1.4(a) and (b) states:(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

11 See supra note 4.

12 In this Opinion the terms “may require” and “may need to” mean that whether the referenced Rules would establish a requirement in any given matter will depend on circumstances such as the scope of a lawyer’s representation and the nature of the matter. At the same time, the term reflects the Committee’s view that the referenced issue should be given serious consideration and could constitute a requirement. The term “should” has the meaning established in the first paragraph of the Scope page of the Rules. See Comment 3 to Rule 1.4.

13 See, e.g., NYSBA Guidelines; Pa. Op. 2014-300.

14 Lenz v. Universal Music Corp., No. 5:07-CV-03783 JF (PVT), 2010 WL 4789099, at *1 (N.D. Cal. Nov. 17, 2010).

15 See generally NYSBA Guidelines; N.Y. Cty. Lawyers’ Ass’n, Ethics Op. 745 (2013) (“NYCLA Op. 745”).

16 See, e.g., Pa. Op. 2014-300.

17 See, e.g., McMillen v. Hummingbird Speed-way, Inc., No. 113-2010 CD, 2010 WL 4403285 2010 Pa. Dist. & Cnty. Dec. LEXIS 270, at *1,

November 2016 THE DISTRICT OF COLUMBIA BAR 401

any such known inconsistencies before submitting court or agency filings to ensure that claims and positions are meri-torious under Rule 3.1, which requires a non-frivolous basis in law and fact,18 and that misrepresentations are not made to courts or agencies19 in violation of Rules 3.3 and 8.4.20

Client social media also can present risks and benefits for transactions and regulatory compliance. For example, review of client social media for their consistency with representations, war-ranties, covenants, conditions, restric-tions, and other terms or proposed terms of agreements could be impor-tant because inconsistency could create rights or remedies for counterparties. Similarly, competent and zealous rep-resentation under Rules 1.1 and 1.3 in regulatory matters may require ensuring that representations to agencies are con-sistent with social media postings and that advice to clients takes such postings into account.

2. Review by AdversariesIn litigation and adversarial regula-

tory matters, social media postings without privacy settings are subject to investigation. Lawyers can and do look at the public social media post-ings of their opponents, witnesses, and other relevant parties, and as discussed below, may even have an ethical obli-gation to do so. Postings with privacy settings on client social media are sub-ject to formal discovery and subpoe-

nas.21 To provide competent advice, a lawyer should understand that privacy settings do not create any expectation of confidentiality to establish privilege or work-product protection against dis-covery and subpoenas.22

3. Document PreservationBecause social media postings are sub-

ject to discovery and subpoenas, a lawyer may need to include social media in advice and instructions to clients about litigation holds, document preservation, and document collection.23 A lawyer also may need to determine whether under applicable law, which varies from jurisdiction to jurisdiction, clients may modify their social media presence once litigation or regulatory proceedings are anticipated. For example, are clients permitted to change privacy settings or to remove information altogether from social media postings? Such analysis may need to include consideration of obstruction statutes, spoliation law,24 and procedural rules applicable to criminal and regulatory investigations and cases; procedural rules and spoliation law in civil cases; and the duty under Rule 3.4(a) not to “[o]bstruct another party’s access to evidence or alter, destroy, or

conceal evidence, or counsel or assist another person to do so. . . .”25 Before any lawyer-counseled or lawyer-assisted removal or change in content of client social media, at a minimum, an accurate copy of such social media should be made and preserved, consistent with Rule 3.4(a).26

Transactional and regulatory repre-sentation also can include advice about adjusting client social media. In the absence of unlawful activity or anticipa-tion of litigation or adversary proceed-ings, that advice may not be constrained by spoliation or obstruction of justice considerations. In order to comply with Rule 1.1, however, a lawyer should not advise a client to make fraudulent or unlawful adjustments; nor should a law-yer participate in such activity or in misrepresentations or material omissions in violation of Rules 1.2(e),27 4.1,28 or 8.4(c).

4. Substantive Regulatory RisksIn regulatory practice, competent

and zealous representation also may require advice about whether social media postings or use violate statu-tory or rule-based limits on public state-ments or marketing. The Securities and Exchange Commission, Federal Trade Commission, Consumer Product Safety Commission, Food and Drug Administration, and other federal, state, and local agencies have promulgated such limits or guidelines. For example, in April 2013 the SEC Division of Enforcement applied Regulation FD and

*13 (Pa. Ct. Com. Pl., Jefferson Cty. Sept. 9, 2010) (plaintiff alleged substantial injures, including “pos-sible permanent impairment,” yet public Facebook postings showed him taking several trips, indicating he had exaggerated his injuries).

18 Rule 3.1 states in part: A lawyer shall not bring or defend a proceed-ing, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modi-fication, or reversal of existing law.

19 See, e.g., NYCLA Op. 745; see also NYSBA Guidelines.

20 Rule 3.3(a)(1) states:(a) A lawyer shall not knowingly:

Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, unless correc-tion would require disclosure of informa-tion that is prohibited by Rule 1.6.

Rule 8.4(c) states:It is professional misconduct for a lawyer to:

(c)Engage in conduct involving dishon-esty, fraud, deceit, or misrepresentation.

21 See, e.g., Robinson v. Jones Lang LaSal-le Ams., Inc., No. 3:12-cv-00127-PK, 2012 WL 3763545, at *1 (D. Or. Aug. 29, 2012) (“I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.”); Loporcaro v. City of New York, 950 N.Y.S.2d 723 (Sup. Ct., Richmond Cty. 2012) (unpublished table decision), 2012 WL 1231021, at *7 (“Clearly, our present discovery statutes do not allow that the contents of such [social media] accounts should be treated differently from the rules applied to any other discovery material. . . .”).

22 See, e.g., Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) (“[M]aterial posted on a ‘private’ Facebook page, that is acces-sible to a selected group of recipients but not avail-able for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy.”); see also Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012); Davenport v. State Farm Mut. Auto. Ins., No. 3:11-cv-632, 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012) (stating that gener-ally social media content “is neither privileged nor protected by any right of privacy”); Patterson v. Turner Constr. Co., 931 N.Y.S.2d 311, 312 (App. Div. 2011).

23 See, e.g., Pa. Op. 2014-300.

24 See, e.g., Gatto v. United Air Lines, Inc., No. 10-cv-1090-ES-SCM, 2013 WL 1285285, at *3, 2013 U.S. Dist. LEXIS 41909, at *10 (D.N.J. Mar. 25, 2013); Torres v. Lexington Ins., 237 F.R.D. 533 (D.P.R. 2006); Lester v. Allied Concrete Co., 83 Va. Cir. 308 (2011), aff’d in part, rev’d in part?, 285 Va. 295 (2013).

25 D.C. Rule 3.4. See, e.g., NYSBA Guidelines; Pa. Op. 2014-300; N.C. Op. 2014-5; Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2014-5.

26 See, e.g., Pa. Op. 2014-300. Because adjust-ing privacy settings does not alter the content of social media postings, Rule 3.4(a) does not require content preservation before such adjustment. Id.

27 Rule 1.2(e) states:(e) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law.

28 Rule 4.1 states:In the course of representing a client, a lawyer shall not knowingly:(a) Make a false statement of material fact or law to a third person; or(b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

402 THE DISTRICT OF COLUMBIA BAR November 2016

the Commission’s 2008 Guidance to the use of social media.29 Communications about initial public offerings pose regu-latory risk, and those risks apply fully to issuer social media.30 Inadequately disclosed interactive internet downloads may constitute unfair or deceptive acts or practices in violation of Section 5(a) of the Federal Trade Commission Act.31 Other agencies have published guide-lines, such as a Guidance on social media issued by the Federal Financial Institutions Examination Council.32

B. Social Media of Adverse Parties,Counsel, and ExpertsCompetent and zealous representation

under Rules 1.1 and 1.3 may require investigation of potentially relevant social media postings of adverse par-ties and their counsel, other agents, and experts.33 In litigation, discov-ery requests should expressly include social media as sources, and discovery responses should not overlook them. Transactional practice may require review of social media both informal-ly by investigation and formally by including social media in due diligence requests. In conducting such investiga-tions, a lawyer should take into consid-eration that some social media networks automatically provide information to registered users or members about per-sons who access their information.34 This is sometimes referred to as a digital footprint.

1. Media of Represented PersonsRule 4.235 generally forbids commu-

nicating with represented persons with-out the consent of their counsel. The Rule applies to some aspects of social media investigation. A lawyer’s review of a represented person’s public social media postings does not violate the Rule because no communication occurs. On the other hand, requesting access to infor-mation protected by privacy settings, such as making a “friend” request to a represented person, does constitute a communication that is covered by the Rule.36

2. Media of Unrepresented Per-sonsRule 4.337 governs lawyer contacts

with unrepresented persons, includ-ing when they are adverse parties. This Rule also applies to social media investigation. As with Rule 4.2, review of public postings of an unrepresented person does not impli-cate the Rule because it does not constitute a communication. On the other hand, requesting access to infor-mation protected by privacy settings would trigger the requirements of Rule 4.3(b). Rules 4.1 and 8.4(c) also apply to such social media communication. To comply with these three Rules, in social media communication with unrepresented persons, lawyers should identify themselves, state that they are

lawyers, and identify whom they rep-resent and the matter.38

3. PretextingRules 4.1 and 8.4 generally preclude

pretexting or other misrepresentation dur-ing review of social media by a lawyer or his or her agents, including requesting access to information protected by pri-vacy settings.39 Unannounced review of publicly available sites usually does not involve pretexting or misrepresentation.40

4. Document PreservationCompetent and zealous representation

under Rules 1.1 and 1.3 may require imposing on adversaries reasonable liti-gation holds that cover social media and pursuing spoliation remedies of adver-saries who have not preserved relevant social media as required by law.41

5. Inadvertent DisclosureIf an investigation of social media

reveals inadvertent disclosure of privi-leged or work product protected informa-tion, a lawyer should consider whether Rule 4.442 or other law, rules, or orders apply.43 This is consistent with the responsibility of a lawyer to refrain from

29 See Report of Investigation Pursuant to Sec-tion 21(a) of the Securities Exchange Act of 1934: Netflix, Inc., and Reed Hastings Exchange Act, Release No. 69279, 105 SEC Docket 4327 (Apr. 2, 2013) (interpreting Commission Guidance on the Use of Company Web Sites, Exchange Act Release No. 58288 (Aug. 7, 2008)).

30 See id. at 5 (“[I]ssuer communications through social media channels require careful Regulation FD analysis comparable to communications through more traditional channels [and] the principles out-lined in the 2008 Guidance . . . apply with equal force to corporate disclosures made through social media channels.”).

31 Complaint and Decision and Order, In Re.Sears Holdings Mgmt. Corp., FTC No. C-4264 (Aug. 31, 2009).

32 Social Media: Consumer Compliance RiskManagement Guidance, 78 Fed. Reg. 76,297 (Dec. 17, 2013).

33 See id.; see also NYCLA Op. 745.

34 See, e.g., NYSBA Guidelines; Ass’n of theBar of the City of N.Y. Comm. on Prof’l Ethics, Formal Op. 2012-2 (“N.Y.C. Op. 2012-2”); see also N.Y. Cty. Lawyers’ Ass’n Comm. On Prof’l Ethics, Formal Ethics Op. 743 (2011) (“NYCLA Op. 743”).

38 See, e.g., Mass Bar Ass’n, Ethics Op. 2014-5;N.H. Bar Ass’n Ethics Comm., Advisory Op. 2012-13/05; see generally D.C. Bar Legal Ethics Op. 321 (2003). But see SDCBA Op. 2011-; N.Y.C. Bar Ass’n Prof’l Ethics Comm., Formal Op. 2010-02; Colo. Op. 127; Ore. Op. 2013-189; Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2009-02; Pa. Op. 2014-300.

39 See, e.g., SDCBA Op. 2011-2; see also Colo. Op. 127; Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2009-02; Ore. Op. 2013-189; N.Y.C. Op. 2010-02. See generally D.C. Bar Legal Ethics Op. 323 (2004) (misrepresentation by government lawyers); Hope C. Todd, Speaking of Ethics: Lies, Damn Lies: Pretexting and D.C. Rule 8.4(c), Washington LaWyer (Jan. 2015).

40 The Committee does not express a viewabout whether pretexting can arise from site pub-lication of terms and conditions for public access.

41 See, e.g., Margaret DiBianca, Discovery andPreservation of Social Media Evidence, Bus. L. Today (Am. Bar Ass’n Jan. 2014) (noting “social media content should be included in litigation-hold notices”).

42 Rule 4.4(b) states:(b) A lawyer who receives a writing relatingto the representation of a client and knows,before [reading] the writing, that it has beeninadvertently sent, shall not examine thewriting, but shall notify the sending partyand abide by the instructions of the sendingparty regarding the return or destruction ofthe writing.

43 See D.C. Bar Legal Ethics Op. 256 (1995).

35 Rule 4.2(a) states:(a) During the course of representing aclient, a lawyer shall not communicate orcause another to communicate about thesubject of the representation with a personknown to be represented by another lawyerin the matter, unless the lawyer has theprior consent of the lawyer representingsuch other person or is authorized by lawor a court order to do so.

36 See, e.g., N.Y. State Bar Ass’n Comm. onProf’l Ethics, Op. 843 (2010); see also Colo. Bar Ass’n Ethics Comm., Formal Op. 127 (2015) (“Colo. Op. 127”); Ore. State Bar, Formal Op. 2013-189 (“Ore. Op. 2013-189”); San Diego Cty. Bar Ass’n Legal Ethics Comm., Op. 2011-2 (“SDCBA Op. 2011-2”).

37 Rule 4.3(a)(2) and (b) states:

(a) In dealing on behalf of a client with aperson who is not represented by counsel, alawyer shall not. . . .:

(2) State or imply to unrepresented per-sons whose interests are not in conflictwith the interests of the lawyer’s clientthat the lawyer is disinterested.

(b) When the lawyer knows or reasonablyshould know that the unrepresented personmisunderstands the lawyer’s role in the mat-ter, the lawyer shall make reasonable effortsto correct the misunderstanding.

seeking information that is protected by the attorney-client privilege of another party.44

6. Trial Evidence and Service of ProcessAt the time of social media investi-

gation or later, competent and zealous representation under Rules 1.1 and 1.3 may require consideration of how social media information will be authenticated and presented as evidence at trials or hearings.45

In some jurisdictions, social media also may be used to effect alternative service on opposing parties.46

C. Social Media of Fact Witnesses and Other Sources of FactsAll of the above considerations about

investigation and use of social media of adverse parties apply to non-party sourc-es of facts, including witnesses.

D. Social Media of JurorsCompetent and zealous representation

under Rules 1.1 and 1.3 may require investigation of relevant information from social media sites of jurors or potential jurors to discover bias or other relevant information for jury selection.47

Accessing public social media sites of jurors or potential jurors is not prohibited by Rule 3.5 as long as there is no com-munication by the lawyer with the juror in violation of Rule 3.5(b),48 and as long as

such access does not violate other appli-cable Rules of Professional Conduct.49 As noted above, some social media networks automatically provide information to reg-istered users or members about persons who access their information. In the Com-mittee’s view, such notification does not constitute a communication between the lawyer and the juror or prospective juror.

Ex parte communication with jurors or potential jurors is prohibited by Rule 3.5(b).50 Because requesting access to a juror’s or potential juror’s private media sites involves communication with the juror, such requests would violate the Rule.51 In addition, if a court or judge forbids access to the social media of jurors and potential jurors, then a viola-tion of a court rule or order could raise questions under Rule 3.4(c).52

Review of juror or potential juror social media could reveal misconduct by the juror or others. Whether and how such misconduct must or should be disclosed to a court is beyond the scope of the Rules of Professional Conduct, except to the extent that the review has revealed information clearly establishing that a fraud has been perpetrated upon the tribunal53 under Rule 3.3(d).54

E. Social Media of Judges, Arbitra-tors, and RegulatorsSocial media of judges, arbitrators,

regulators, and agencies could contain information relevant to cases and other matters in which a lawyer provides rep-resentation.

To the extent not prevented by court, agency, or professional responsibility rules, competent and zealous represen-tation under Rules 1.1 and 1.3 may require investigation of relevant infor-mation from social media sites of deci-sion-makers. For example, to formulate regulatory advice, a lawyer may need to review public social media of agencies and their decision-makers, while avoid-ing inappropriate ex parte communica-tion, pretexting not authorized by law, and influence prohibited by law.

As with social media of jurors, lawyer review of public social media of judges, arbitrators, regulators, and other neutrals does not constitute communication and therefore is not an ex parte contact in violation of Rule 3.5, even if it occurs during the pendency of a case or matter.

The ABA and several ethics opinions have opined that judges can participate in social media, and a lawyer can be a “friend” of judges on social media sites, as long as the contacts comply with the Code of Judicial Conduct; do not undermine the judges’ independence, integrity, or impar-tiality; and do not create an appearance of impropriety.55 D.C. Rule 3.5(a)56 prohibits seeking to influence a judge or other offi-cial by means prohibited by law.

When no case or proceeding involv-ing a lawyer is pending, Rule 3.5 does not forbid the lawyer from becoming a “friend” of judges, arbitrators, regulators, or other neutrals. Nor does it forbid public or private social media communication with such persons, as long as Rule 3.5(a) is not violated.57 When a case or matter is pending before a decision-maker, the prohibition of ex parte communication in Rule 3.5(b) applies to all communica-tion, including by social media.58 In such a circumstance a lawyer should consider

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44 See D.C. Bar Legal Ethics Op. 287 (1998) (“[A] lawyer may not solicit information . . . that is reason-ably known or which reasonably should be known to the lawyer to be protected from disclosure by statute or by an established evidentiary privilege.”).

45 See generally, e.g., Lorraine v. Markel Am. Ins., 241 F.R.D. 534 (D. Md. 2007) (Grimm, M.J.) (addressing evidence rules applicable to social media and other internet evidence).

46 See, e.g., Baidoo v. Blood-Dzraku, 5 N.Y.S. 3d 709, (Sup. Ct., N.Y. Cty., 2015) and cases cited therein from the Southern District of New York, the Eastern District of Virginia and the Supreme Court of Richmond County, New York allowing alterna-tive service by Facebook; and from the Southern District of New York, the Eastern District of Mis-souri, and the Supreme Court of Oklahoma not allowing such service. See generally Christopher M. Finke, Internet Service Provided: The Move-ment Towards Service of Process Via Social Media, U. Balt. L. Rev.: Issues To Watch (Nov. 12, 2015), ubaltlawreview.org/2015/11/12/the-movement-towards-service-of-process-via-social-media.

47 For example, some courts encourage pre-trial investigation of jurors to uncover juror conduct before trials begin. See, e.g., Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010) (en banc) (per curiam).

48 See, e.g., NYSBA Guidelines; ABA Op. 466; Pa. Op. 2014-300; NYCLA Op. 743; Ore. Op. 2013-189.

49 Accord, e.g., ABA Op. 466; Pa. Op. 2014-300. But see NYSBA Guidelines; NYCLA Op. 743; N.Y.C. Op. 2010-2.

50 Rule 3.5(b) states:A lawyer shall not:(b) Communicate ex parte with [a judge or juror] during the proceeding unless autho-rized to do so by law or court order.

51 See, e.g., NYSBA Guidelines; ABA Op. 466; Pa. Op. 2014-300; Ore. Op. 2013-189; NYCLA Op. 743.

52 Rule 3.4(c) states:A lawyer shall not:(c) Knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.

53 See, e.g., ABA Op. 466; NYCLA Op. 743.

54 Rule 3.3(d) states:(d) A lawyer who receives information clear-ly establishing that a fraud has been perpe-trated upon [a] tribunal shall promptly take reasonable remedial measures, including dis-closure to the tribunal to the extent disclosure is permitted by Rule 1.6(d).

55 American Bar Ass’n Standing Comm. on Eth-ics & Prof’l Responsibility, Formal Op. 462 (2013) (“ABA Op. 462”); accord N.C. State Bar, Formal Ethics Opinion 2014-8 (“N.C. Op. 2014-8”) (as long as no communication occurs during the pen-dency of a lawyer’s case before the judge); Pa. Op. 2014-300 (as long as the purpose is not to influence the judge and no ex parte communication occurs).

56 Rule 3.5(a) states:A lawyer shall not:(a) Seek to influence a judge, juror, prospec-tive juror, or other official by means prohib-ited by law.

57 See id.; Pa. Op. 2014-300.

58 See, e.g., NYSBA Guidelines; ABA Op. 462; N.C. Op. 2014-8; see also Youkers v. State, 400 S.W.3d 200, 206 (Tex. App. 2013) (“[W]hile the internet and social media websites create new venues for communi-cations, our analysis should not change because an ex parte communication occurs online or offline.”).

whether to remove, at least temporarily, the decision-maker as a “friend” or other connection on social media.

F. Lawyer Social MediaMany lawyers and law firms have

social media accounts to facilitate review of the internet presence of clients and others as discussed above. In addition, lawyers also use social media sites to comment on legal issues, cases, and mat-ters. Although such social media post-ings, including about litigation, are not necessarily prohibited, the Rules impose some constraints. See Opinion 370, which addresses lawyers’ use of social media for their own marketing and other purposes.

As with all communications by a law-yer, Rule 1.6 prohibits disclosure in social media postings of client confidences or secrets unless expressly or impliedly authorized by the client or unless another specific exception is provided by the Rules. When a client consents to social media posting related to a matter, the lawyer should be careful not to disclose, without specific client consent, attorney-client privileged information. Purpose-ful disclosure of privileged information could result in a subject matter waiver, and even inadvertent disclosure could result in waiver of particular communi-cations.59 Such care also should be taken regarding identification, financial, health, and other sensitive personal information. In addition, social media postings should not violate protective orders or confiden-tiality agreements.

Regarding trials and other adversary proceedings, Rule 3.660 prohibits state-ments by a lawyer, on social media or otherwise, that the lawyer knows or rea-sonably should know will create a serious and imminent threat of material prejudice to a proceeding. As noted above, Rule 3.5 forbids communications seeking to influence a judge, juror, prospective juror or other official by means prohibited by law or to disrupt any proceeding or tribu-nal. Rule 3.8(f)61 prohibits statements by

prosecutors that heighten condemnation of the accused and do not serve a legiti-mate law enforcement purpose.62 All of these Rules apply to social media post-ings by a lawyer.

IV. Supervision of Lawyers and StaffUnder Rules 5.163 and 5.3,64 a law-

yer should take reasonable measures to ensure that any social media investiga-tion or posting by subordinate lawyers and staff—including personal posting—conforms to the Rules of Professional Conduct, including protection of confi-dential client information.

V. ConclusionSocial media, like other technology

applicable to the practice of law, will con-tinue to change. The principles explained in this Opinion should be applied to such change to ensure continuing compliance with the Rules of Professional Conduct.

Published November 2016

Opinion 372

Ethical Considerations in Law Firm Dissolutions

Introduction and Scope

Numerous ethical obligations attach to both a law firm and its members in connection with the process of the dis-solution of the firm. These obligations include, without limitation, the obligation to continue to competently, zealously and diligently represent and communi-cate with clients during the dissolution process; the obligation of the members

of the firm, after consultation, to notify clients of the dissolution and provide cli-ents with options under such notice; the obligation to facilitate the choice of new counsel by clients of the dissolving firm; and, the obligation to properly dispose of client files, funds and other property. As used in this Opinion, the term “dis-solution” means the process of terminat-ing the law firm’s existence as a legal entity. Since dissolution of a law firm is a process and not a single event, the term is not limited to the legal or techni-cal action which is required to terminate the existence of the firm as a legal entity under corporate, partnership, bankruptcy or other applicable law. Certain ethical obligations may apply at various points during the dissolution process itself and other ethical obligations may continue to apply after the firm has been dissolved. These ethical obligations may attach either when dissolution of the firm has been agreed to by its members or, absent such agreement, is nonetheless reason-ably foreseeable. This Opinion does not address the departure of members of the firm in and of itself, even in significant numbers, absent an expectation that the firm itself will at some reasonably fore-seeable time in the future be dissolved.1

Applicable Rules

• Rule 1.1 (Competence)• Rule 1.3 (Diligence and Zeal)• Rule 1.4 (Communication)• Rule 1.6 (Confidentiality of Infor-

mation)• Rule 1.7 (Conflict of Interest; Gen-

eral)• Rule 1.8(i) (Conflict of Interest;

Specific Rules) • Rule 1.9 (Conflict of Interest; For-

mer Client)• Rule 1.15 (Safekeeping Property)• Rule 1.16(d) (Declining or Termi-

nating Representation)• Rule 5.1 (Responsibilities of Part-

ners, Managers, and Supervisory Law-yers)

• Rule 5.4(b) (Professional Indepen-dence of a Lawyer)

• Rule 5.6(a) (Restrictions on Right to Practice)

• Rule 7.1 (Communications Con-cerning a Lawyer’s Services)

• Rule 8.4(c) (Misconduct)

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59 See, e.g., NYSBA Guidelines; D.C. Op. 256.

60 Rule 3.6 states:A lawyer engaged in a case being tried to a judge or jury shall not make an extrajudicial statement that the lawyer knows or reason-ably should know will be disseminated by means of mass public communication and will create a serious and imminent threat of material prejudice to the proceeding.

61 Rule 3.8(f) states:(f) The prosecutor in a criminal case shall not:Except for statements which are necessary to

inform the public of the nature and extent of the prosecutor’s action and which serve a legitimate law enforcement purpose, make extrajudicial com-ments which serve to heighten condemnation of the accused.

62 See, e.g., United States v. Bowen, 799 F.3d 336 (5th Cir. 2015).

63 Rule 5.1(b) states:(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

64 Rules 5.3(b) states:With respect to a nonlawyer employed or retained by or associated with a lawyer:(b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

1 Although the ethical considerations which arise in connection with the lateral movement of lawyers between law firms, as well as law firm mergers and acquisitions, overlap with the ethical considerations which arise in connection with law firm dissolution, this Opinion is limited to the latter. See D.C. Legal Ethics Op. 273 (1997).

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Inquiry

The Committee has received numer-ous inquiries through the ethics helpline and otherwise related to the ethical con-siderations that arise in connection with law firm dissolution. Unlike jurisdictions which have a specific rule governing law firm dissolution, the D.C. ethical consid-erations that arise in connection with law firm dissolution are dispersed throughout the D.C. Rules of Professional Conduct. We believe that it will be helpful to mem-bers of the Bar to aggregate the ethical principles of the various applicable D.C. Rules and Opinions in one comprehen-sive opinion.2

Discussion

The paramount principle governing the ethical obligations of a law firm and its members in connection with the process of dissolving the firm is that the law firm and its members must continue to competently, zealously and diligently represent and communicate with the cli-ents during the dissolution process. The Rules of Professional Conduct protect the interests of clients by codifying the responsibilities of the legal profession to the public. Thus, despite the many competing responsibilities and potential difficulties of lawyers during the dis-solution process, the ethical duties to clients are paramount. The individual lawyers in the firm have an ethical duty to ensure that the matters for which they are responsible are properly handled with diligence and zeal – including completion of their matters if possible – during the dissolution of the firm.3 Moreover, since engagement letters are typically contracts between the clients and the dissolving firm, and not the individual lawyers, the firm itself has a comparable ethical duty.4

The Dissolution Process

Consultation When does the process of dissolution

of a law firm begin? This question is not susceptible of a bright line test. There are myriad scenarios that lead to the ultimate decision to dissolve a firm. Numerous members of a firm may leave before the remaining partners decide to dissolve the firm. In the Committee’s view, the test is: when is there a reasonable expectation that the firm will at some foreseeable time in the future cease to exist as a legal entity? This test may be met by both subjective and objective standards; i.e., the mem-bers of the firm may agree to dissolve, or, absent such agreement, a reasonable lawyer considering all of the facts and the conduct of the firm may conclude that dis-solution is reasonably foreseeable.

The first step in the dissolution process might well be a decision by the members of the firm, after consultation in good faith, to dissolve the firm. However, we recognize that, in some dissolutions, such consensus and unanimity may be difficult or impossible. Thus, if good faith consul-tation is impossible or if the authorized members of the firm are unable to agree on dissolution, but there is a reasonable expectation that the firm will at some foreseeable time in the future cease to exist as a legal entity, then individual members of the firm should not be con-strained from moving forward.

Notice to ClientsThe next step in the dissolution process

is to notify firm clients of the dissolution as soon as practicable.5 Although the timing of notice of the firm’s dissolution may not be susceptible of precise deter-mination, the ethical mandate is that the notice to clients be timely. Specifically, if after the firm dissolves the lawyer will no longer represent the client, Rule 1.16 (d) requires the lawyer to “take timely steps to the extent reasonably practicable to protect the client’s interests, including giving reasonable notice to the client, allowing time for the client to employ other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fees or expenses that has not been earned or incurred.”6 Even if the lawyer’s con-

tinued representation beyond dissolu-tion is anticipated or unknown, under Rule 1.4, the notice should be sent early enough so that, upon receipt by the client, the client has sufficient time to make an informed decision regarding the impact of the firm’s dissolution on the client’s matter(s) and the client’s representation generally.7

ABA Formal Opinion 99-14 (1999) concludes that, once the members of a firm agree to dissolve, notification to the clients “can be accomplished by the [responsible] lawyer herself, the respon-sible members of the firm, or the law-yer and those members jointly.” ABA Opinion 99-14 does, however, state that “far the better course to protect clients’ interests is for the departing lawyer and her law firm to give joint notice of the lawyer’s impending departure to all cli-ents for whom the lawyer has performed significant professional services while at the firm, or at least notice to the current clients.”

Florida Rule 4-5.8 and Virginia Rule 5.8 specifically govern the dissolution of a law firm in those jurisdictions. Under both jurisdictions’ Rules, the lawyers of the dissolving firm may not unilaterally contact clients of the firm unless autho-rized members of the firm have conferred or attempted to confer and have been unable to agree on a method to provide notice to clients. If no method to provide notice to clients can be agreed upon, the unilateral notice from individual mem-bers of the dissolving firm must provide options to the clients that they may choose to be represented by any member of the dissolving firm, other lawyers, or other law firms. If a client of a dissolving law firm fails to advise the lawyers of the client’s intention with respect to who is to provide future legal representation, the client is deemed to remain a client of the lawyer who is primarily responsible for representation of the client on behalf of the firm until the client advises other-wise.8

In the absence of a specific governing rule in the District of Columbia, and after reviewing the Virginia and Florida Rules, ABA Formal Opinion 99-14, and appli-cable authority in other jurisdictions, this Opinion provides guidance to members

2 This Committee does not opine on questions of law outside of the D.C. Rules of Professional Conduct. The ethical questions presented in this inquiry, however, may require consideration of the substantive law that may arise and apply in the context of law firm dissolution, including without limitation the law governing bankruptcy, partner-ships, corporations and other business entities, contracts, agency, fiduciary duty, real or personal property, tort, trade secrets and unfair competition. Members of the dissolving firm, and the dissolving firm itself, should consider these as appropriate. Nor, for the most part, does this Opinion address the myriad practical, financial and business consid-erations related to law firm dissolution.

3 Rules 1.1 and 1.3.

4 Id.; see also Rule 5.1.

5 See Opinion 273, in which we lay out in some detail the specifics of the required notice to clients with respect to lateral moves. The same principles should generally govern notice to clients with respect to law firm dissolution.

6 Rule 1.16(d).

7 Rule 1.4(a) and 1.4(b).

8 See Florida Rule of Prof. Conduct 4-5.8 and Virginia Rule of Prof. Conduct 5.8. For purposes of the notice required by the Virginia Rule, “client” refers to clients for whose active matters the lawyer has primary responsibility. This excludes closed matters and includes associates as well as partners.

406 THE DISTRICT OF COLUMBIA BAR March 2017

of the D.C. Bar on the best practices for law firm dissolution, including notice to clients.9

Joint notice by all members of the firm to the clients is preferred.10 However, if members of the firm cannot agree to provide notice to the clients, or the terms thereof, then in our view an individual lawyer or group of lawyers in the firm may give unilateral notice to the clients. The lawyer in the firm who had the most significant contact with the particular client, if practicable, should give such unilateral notice. Only if this is not practicable should unilateral notice by other lawyers in the firm be given. This resolution addresses the tension between joint notice by members of the firm to clients about the firm’s dissolution and solicitation of the clients by individual lawyers of the dissolving firm for their new firm(s) and also enables lawyers to fulfill their ethical obligations to timely communicate information necessary to allow clients to make informed decisions about their legal representations.

Whether the notice is given jointly by all of the authorized members of the dissolving law firm or unilaterally by individual lawyers in the dissolving law firm, it cannot contain false or mislead-ing statements.11 It should provide the options to the clients to choose represen-tation by any member of the dissolving firm, representation by any other lawyer, or representation by any other law firm. The notice may not restrict any lawyer’s right to practice.12

In the Committee’s view, the notice should further provide that, if the client does not respond to the notice and choose any of these three options, the client shall be deemed to remain a client of the law-yer who has been primarily responsible for providing legal services to the client until the client advises otherwise. We appreciate that identifying the lawyer in the firm who is “primarily responsible”

for providing legal services to the cli-ent is not always an easy endeavor and should be determined on a case-by-case basis depending upon the particular facts and circumstances of the representation. For example, a client’s overall relation-ship partner may not be the lead litigation counsel in a particular litigation matter for the client; nonetheless, the lead litiga-tion counsel may well be the lawyer “pri-marily responsible” for providing legal services to the client in that litigation matter.

Which Clients Receive Notice?All clients affected by the firm’s dis-

solution should be notified. This always includes current clients with active mat-ters. In our view, as a general rule notice need not be given to all former clients whose matters have been closed. How-ever, notice should be given to former clients even if their matters are inactive and their files are closed if the firm is holding files and other property for the presumptive five year period after a mat-ter is closed or if the firm is holding files or other property of intrinsic value, such as an original will or stock certificates.13 Such clients are clearly affected by the firm’s dissolution and should be noti-fied. (See “Client Files” and “Client Trust Funds and Other Property,” below, with respect to the ethical requirements for the return of the clients’ files, funds and other property.) Moreover, notice to former clients is certainly permissible, although not required.14

Options for Client to Choose Counsel under Notice

A key principle governing the ethical obligations of a law firm and its mem-bers in connection with the process of dissolving the firm is that the clients do not belong to either the law firm or its members. It is axiomatic that a client has the right to retain and discharge a lawyer at will.15 When a law firm dissolves, therefore, the client may also discharge counsel and either hire new counsel or

not. None of the individual members of the dissolving firm “own” the client. Nor does the dissolving law firm itself, as a separate legal entity, “own” the client.16 It follows, therefore, that as a general rule a client’s right to choose counsel may not be impaired by the dissolution of a law firm. The client may choose to continue to be represented by a member of the dissolving firm at her new firm or to be represented by another lawyer or by another firm.

There may be other facts and circum-stances, however, which give rise to exceptions to the general rule that the client has the right to choose counsel, and require the consideration of alterna-tives. For example, a lawyer’s former law firm is dissolving and she is joining another law firm. She represents a client at the former law firm who wishes her to continue the representation at the new law firm. However, the new law firm represents another client whose interests are adverse to those of her client, which creates a conflict of interest under Rule 1.7. The conflict of interest cannot be resolved by client consent or otherwise. The lawyer cannot continue to represent the client at the new firm if such repre-sentation will result in a violation of the Rules of Professional Conduct or other law.17 Thus, other ethical obligations may preclude the lawyer’s ability to con-tinue to represent her client, even if she and the client wish her to continue the representation.18

As another example, a lawyer’s former law firm is dissolving and she is joining another law firm that does not have the support and resources with respect to the client’s matters as were available at the dissolving firm. This could limit the lawyer’s ability to adequately represent her client at the new law firm. This could raise an issue of competent representa-tion under Rule 1.1.

Conversely, there may be situations where the lawyer from the dissolving

9 This builds on the guidance provided in Opinion 273. However, we caution lawyers in dis-solving firms that every notice should be tailored to the particular facts and circumstances surrounding the firm’s dissolution, which can be quite varied. There is no “one size fits all” formula for notice to clients when a law firm dissolves.

10 The ethics opinions of other jurisdictions vary as to whether joint notice, individual notice, or both, is required. See, e.g., Cal. Bar Ethics Op. No. 1985-86 (interpreting the California Rule to require both the departing lawyer and the law firm to provide notice to the client).

11 Rules 7.1(a) and 8.4(c).

12 Rule 5.6(a).

13 See Rule 1.15(a), Rule 1.15(c), Rule 1.16(d), D.C. Legal Ethics Op. 283 (1998).

14 For example, a lawyer who has had a long and deep relationship with a client, but who has no active matters and is currently holding no client files or other property, may nevertheless consider notifying the former client of her firm’s dissolution, as the client may nonetheless view her as its lawyer.

15 A client has the right to discharge the law-yer at any time, with or without cause, subject to liability for payment for the lawyer’s services. Rule 1.16(a)(3); Rule 1.16, comment [4].

16 In this respect, the Committee is aware of Restatement (3d) of the Law Governing Lawyers, §9(3), comment i, which suggests that clients belong to the law firm and not to the individual lawyer. The Committee disagrees with any char-acterization of clients as property of the law firm.

17 Rule 1.16(a)(1).

18 If a conflict of interest arises under Rule 1.7(b)(1) by virtue of dissolution of a lawyer’s firm and her joining a new firm, and the clients do not consent under Rule 1.7(c), a lawyer should consider whether that conflict was or was not reasonably foreseeable under Rule 1.7(d), and thus whether she may or may not continue to represent the client under the “thrust upon” exception to the conflict rule.

firm wishes to withdraw from representa-tion of her client, but there are limitations on her right to do so. As a general rule, a lawyer may withdraw from represent-ing a client after her firm dissolves if the withdrawal can be accomplished without material adverse effect on the interests of the client.19 However, the lawyer may be compelled to represent the client at her new firm. For example, the lawyer may notify a court, administrative agency or other tribunal that, upon dissolution of her law firm, she wishes to terminate rep-resentation of her client at her new firm, but that tribunal may order the lawyer to continue to represent her client.20

Thus, depending upon the specifics of the lawyer-client relationship and the particular facts and circumstances of each case, a lawyer in a dissolving firm should carefully consider whether she has an ethical obligation which precludes or limits her ability to continue to repre-sent her client diligently, zealously and competently at her new firm.

A corollary to the client’s right to choose counsel is the lawyer’s right, after dissolution of her former law firm, to form, or move to, a new law firm. As a general rule, any agreement restricting the right of lawyers in a law firm to practice after the firm dissolves is unethical.21 Such an agreement not only limits the lawyer’s professional autonomy but also limits the freedom of clients to choose a lawyer.22 A long line of Opinions of this Committee (most recently Opinion 368, Lawyer Employment Agreements – Restrictions on Departing Lawyer Who Competes with Former Firm (2015)) has disapproved various restrictions on the mobility of lawyers as a matter of public policy. Underlying each of these Opinions is the intent to preserve clients’ access to lawyers who, because of their back-ground and experience, might be the best available talent to represent them.23 Of course, the ethical obligations discussed above which may limit the client’s abil-ity to choose counsel may also limit the lawyer’s ability to choose a new law firm.

Notice to Third PartiesIn addition to the client, notice must

be given to certain third parties. Oppos-

ing counsel and the tribunal must be notified.24 In addition, governmental agencies and other non-adjudicative administrative entities before which law-yers of the dissolving firm are appearing may require notification under their own rules and procedures, which are beyond the scope of this Opinion.25

Client Files

As an ethical matter, at the termination of a representation, upon request of the client, the lawyer must timely surrender the entire file.26 Such files may be made available for the client to pick up, deliv-ered to the client, delivered to the client’s new (or continuing) counsel, destroyed, or delivered to some other person des-ignated by the client. If the files are not necessary to protect the client’s interests or otherwise needed for continued repre-sentation, the costs of delivery, storage and review of the files may be charged to the client.27 The lawyer may make a copy of the files at his own cost.28

The question often arises as to whether such files may be withheld if the client has not fulfilled his obligation to pay the firm’s earned fees and expenses. The District of Columbia permits lawyers to assert and enforce retaining liens against the property of clients for unpaid fees, as a matter of substantive law on which the ethics rules take no position.29 Rule 1.8(i) provides a narrow exception to Rule 1.16(d): as to files, the lawyer may retain only that portion of the file which consti-tutes the lawyer’s own work product if the client has not paid for the work. Even this narrow exception does not apply if the client has become unable to pay or if withholding the work product might

irreparably harm the client’s interest. Opinion 250 (1994) states that “retain-ing liens on client files are now strongly disfavored in the District of Columbia, that the work product exception permit-ting such liens should be construed nar-rowly, and that a lawyer should assert a retaining lien only where the exception is clearly applicable and where the lawyer’s financial interests clearly outweigh the adversely affected interests of his former client.” We stress that a lawyer who relies on the narrow exception of Rule 1.8(i) to withhold any part of a client file does so at his own peril.

For client files maintained solely in electronic form, see Opinion 357 (2010). Absent an agreement to the contrary, a lawyer must comply with a reasonable request by a client to convert electronic records into paper form. In most cases, the client should bear the cost of such conversion, but in certain circumstances the lawyer may be required to bear the cost.

As discussed above, client files are considered “other property” of the client under Rule 1.15(a). Under that Rule and Opinion 283, such files shall be retained for a period of five years after termina-tion of the representation, and under Rule 1.15(c) shall be “promptly delivered” to the client upon direction.

Client Trust Funds and Other Prop-erty

Under Rule 1.15(a), client trust funds, including retainers, are to be held in sepa-rate trust accounts maintained in accor-dance with Rule 1.15(b), absent other agreement with the client.30 Other client property is also to be held separately from the lawyer’s own property. Under Rule 1.15(c), upon request by the client, the lawyer shall promptly “deliver” to the client any funds or other property that the client is entitled to receive. Under Rule 1.15(e), Rule 1.16(d) applies to require the return to the client of any unearned portion of advanced legal fees and unin-curred costs upon termination of the lawyer’s representation.

If, after reasonable but unsuccessful attempts to locate a missing client or a former client for whom a dissolving firm is holding trust funds or other property,

March 2017 THE DISTRICT OF COLUMBIA BAR 407

19 Rule 1.16(b).

20 Rule 1.16(c).

21 Rule 5.6(a).

22 Rule 5.6, comment [1].

23 See, e.g., D.C. Legal Ethics Op. 335 (2006).

24 Rule 1.16(c).

25 As a practical matter notice of the firm’s dis-solution should also be given to mandatory state bar associations to which lawyers of the dissolving firm belong, other voluntary professional organizations of which it is a member, the firm’s malpractice car-rier, its accountant, taxing authorities, its bank and other creditors. The dissolving firm may also be required to file notice of dissolution with the D.C. Department of Consumer and Regulatory Affairs.

26 See Rules 1.16(d) and 1.15(c); see also In re Thai, 987 A.2d 428, 430 (2009) and D.C. Legal Ethics Ops. 250 (1994), 283 (1998), 333 (2005) and 357 (2010). Opinion 333 reaffirms the Dis-trict’s “entire file” approach; i.e., the file includes copies of internal notes and memoranda reflecting the views, thoughts and strategies of the lawyer.

27 Opinion 283.

28 See D.C. Legal Ethics Op. 250 (1994).

29 Rule 1.8, comments [16], [17], [18] and [19]

30 Rule 1.15(b) clarifies trust funds which must be held in a D.C. IOLTA account. Rule 1.15(e) provides that “advances of unearned fees and unin-curred costs shall be treated as property of the client pursuant to paragraph (a) until earned or incurred unless the client gives informed consent to a differ-ent arrangement.”

the client cannot be located, the firm should consider the funds or other prop-erty abandoned and, if the circumstances fall within the District of Columbia’s Unclaimed Property Act, dispose of the funds or property as directed by that statute.31

Information about the Firm

The dissolving law firm should review its website, firm listings and directories to ensure compliance with Rule 7.1. In light of the pending dissolution, no infor-mation can be contained therein which is false or misleading. A communication is false or misleading if either it contains a material misrepresentation of fact, or omission of a fact necessary to make the statement considered as a whole not materially misleading, or it contains an assertion about the firm or its services that cannot be substantiated.32 For exam-ple, the website should be updated for a transitional period to disclose the firm’s dissolution, to provide contact informa-tion for the dissolved firm’s former law-yers, and to inform clients how to obtain their files.

If the firm is going to use its firm name and letterhead during the transition period, the letterhead must be updated to accurately reflect the dissolution of the firm and the departure of the firm’s lawyers.

Sole Practitioners

The Rules recognize the heightened risk to clients upon the dissolution of a solo practice, where such dissolution is due to the death, disappearance or disability of the sole practitioner. In order to protect the interests of a sole practitioner, and ensure continuity of representation of such clients, each sole practitioner should prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client that the lawyer is no longer engaged in the practice of law, and determine whether there is a need for immediate protective action.33 The D.C. Bar Prac-tice Management Advisory Service pro-vides confidential consultation services and a checklist for closing a law office

which may be particularly helpful to sole practitioners.34

If such a succession plan has not been prepared by a sole practitioner, there is a procedure for appointment of coun-sel by the District of Columbia Court of Appeals, on motion of the Board on Professional Responsibility, if a sole practitioner dies, disappears, or is sus-pended for incapacity or disability and no partner, associate or other responsible attorney is capable of conducting the attorney’s affairs.35

Dissolution of a Section 5.4(b) Law Firm

A unique issue in the District of Columbia arises upon the dissolution of a law firm that includes both lawyer partners and non-lawyer partners under Rule 5.4(b).

The partnership or other organizational document of the firm may specify the methodology to be followed when such a firm dissolves. In any event, the non-lawyer partners of the firm have ethi-cal duties coextensive with those of the lawyer partners of the firm with respect to clients. Thus, the ethical duties of lawyers of dissolving firms discussed above would apply equally to non-lawyer partners of a Rule 5.4(b) firm.36

The non-lawyer partners of the firm and the lawyer partners of the firm have an initial duty to provide notice of the firm’s dissolution to the other lawyers in the firm and thereafter to the clients. If good faith efforts to agree upon such a notice to the clients are unsuccessful, the individual lawyers and non-lawyers in the firm may unilaterally notify clients of the firm of the firm’s dissolution, subject to the constraints discussed earlier in this Opinion.

If a Rule 5.4(b) firm dissolves and the lawyer partner who was providing legal services to the client in tandem with the non-lawyer partner’s provision of non-legal services no longer wishes to provide legal services to the client, and there is no other lawyer who is capable of providing legal services to the client, the lawyer partner may have an ethical duty to continue to provide legal services to the client consistent with Rule 1.16 because the non-lawyer partner cannot provide legal services to the client.

Death, Incompetence or Disability of Lawyer

Where dissolution of a firm is incident to the death, disability or incompetence of a partner in the firm, so that the partner cannot give notice of dissolution to the clients, one of the surviving, competent lawyers should, in addition to any other ethical duties she may have, provide such notice to clients. This could include a partner, co-counsel, associate or other-wise affiliated lawyer.

Conclusion

A lawyer has numerous ethical obliga-tions in connection with the dissolution of his law practice or a law firm of which he is a member. A lawyer must consider the obligations to continue to diligently repre-sent and communicate with clients during the dissolution period, to notify clients of the dissolution, to facilitate the clients’ choice of counsel, and to properly dispose of cli-ent files, funds or other property. There are additional considerations for the dissolution of Rule 5.4(b) firms and solo practices.

Published March 2017

Opinion 373

Court-ordered Representation of Cli-ents in Criminal Domestic Violence Matters Who are Party to Parallel Civil Protection Order Proceedings

Inquiry

The D.C. Bar Legal Ethics Committee was informed that attorneys appointed pursuant to the District of Columbia’s Criminal Justice Act, 11 D.C. Code, §§ 2601 et seq. (2012) (the “CJA”), often represent individual defendants in crimi-nal domestic violence matters who are also respondents in parallel Civil Protec-tion Order (“CPO”) proceedings. Typi-cally, these respondents appear in the CPO proceeding pro se because there exists no statutory entitlement to a CJA attorney in civil proceedings. Recog-nizing that criminal domestic violence matters and parallel CPO proceedings often share a common factual and legal nexus, CJA attorneys often attempt to guide their clients in the CPO hearings without entering an appearance in these matters or otherwise undertaking rep-resentation of the respondents in these civil proceedings.

408 THE DISTRICT OF COLUMBIA BAR June 2017

31 See Rule 1.15(c) and D.C. Legal Ethics Op. 359 (2011). Generally, such funds escheat to the Mayor.

32 Rule 7.1(a).

33 Rule 1.3, comment [5].

34 http://www.dcbar.org/bar-resources/practice-management-advisory-service/

35 D.C. App. R. XI, § 15(a).

36 Rule 5.4(b)(2).

June 2017 THE DISTRICT OF COLUMBIA BAR 409

While refraining from entering an appearance in civil proceedings, CJA attorneys may nevertheless attempt to influence portions of these CPO hearings to protect the respondents’ rights in the parallel criminal matters. These attempts often involve efforts by CJA attorneys to direct what their clients say or even speaking in court themselves at the CPO hearings.

These facts raise several questions: Are court-appointed CJA attorneys rep-resenting clients in criminal domes-tic violence matters ethically required to enter appearances in parallel CPO proceedings? Relatedly, do the Rules of Professional Conduct allow CJA attorneys—who choose not to enter appearances—to nevertheless guide or influence their clients in the parallel CPO proceedings?1

Applicable Rules

• Rule 1.1(a) (Competence)• Rule 1.2 (Scope of Representation)• Rule 1.3(a) (Diligence and Zeal)• Rule 1.4(b) (Communication)• Rule 1.5(b) (Fees)• Rule 4.2(a) (Communication

between Lawyer and Person Represent-ed by Counsel)

Factual Overview

A. Entitlement to Counsel Under the CJA

Indigent persons charged with crimi-nal offenses under District of Columbia law are appointed counsel pursuant to the CJA. See 11 D.C. Code, §2601; Scott v. Illinois, 440 U.S. 367 (1979) (explaining that an indigent defendant in criminal proceedings has a right to coun-sel under the Sixth Amendment of the United States Constitution). The under-lying purpose of the CJA is “to insure that persons charged with crimes in the District of Columbia, who are financially unable to obtain an adequate defense ... are provided with legal representation.”2 The CJA mandates appointment of coun-

sel for any person charged with a felony, misdemeanor, or other offense involving the possibility of imprisonment in the District of Columbia who cannot afford representation.3

The CJA does not provide for appoint-ment of counsel for defendants in civil proceedings, even those that may have a factual overlap with criminal matters in which a CJA attorney is appointed. While the CJA refers to “cases covered by this Act where the appointment of counsel is discretionary,” it does not define such cases. 11 D.C. Code, § 2602.

The District of Columbia Court of Appeals establishes specific standards of performance for attorneys appoint-ed pursuant to the CJA.4 These obli-gations generally provide that a CJA attorney must “continue to represent the person throughout the proceedings, including disposition of the appeal and of any post-decision proceedings that appointed counsel may elect to initiate … Motions to withdraw are disfavored absent a true conflict between counsel and the client.”5 In addition, the Crimi-nal Division of the Superior Court out-lines practice standards to ensure CJA attorneys provide competent representa-tion to individuals in criminal cases,6 and recommends these lawyers “coun-

sel[] clients concerning matters related to their case.”7

B. The CPO and its Relationship with Associated Criminal Proceedings

The Domestic Violence Unit of the Superior Court handles misdemeanors in which the defendant and complain-ant have an intra-family relationship, as defined by the D.C. Intrafamily Offens-es Act, D.C. Code §§ 16-1001 et seq. (2014). The Unit also handles requests for CPOs by victims of domestic vio-lence. The CPO is a court order issued in a civil proceeding against the perpetrator of any domestic offense misdemeanor or felony. The CPO is issued when a judge determines that the respondent-perpe-trator, more likely than not, committed a crime against the petitioner-victim. Among other things, the CPO prohibits the respondent-perpetrator from coming into physical proximity of the petitioner-victim.8

Violation of a Temporary Protection Order (“TPO”) or final CPO constitutes criminal contempt, a misdemeanor pun-ishable by a fine, imprisonment for not more than 180 days, or both.9 Also, if the respondent-perpetrator committed a crime while violating the CPO, that con-duct constitutes a separate offense which is separately punishable.

The domestic violence incident under-lying the request for a CPO is often the subject of a related criminal proceeding. The District of Columbia has a manda-tory arrest policy in cases of domestic violence.10 The U.S. Attorney’s Office for the District of Columbia will typically file criminal charges against a respon-dent-perpetrator if that individual was arrested for domestic violence. Criminal proceedings arising from the domestic violence incident can occur either before or after the hearing on a temporary pro-tection order or final CPO.

The Public Defender Service for the District of Columbia recognizes that

1This Committee does not opine on questions of law outside of the Rules of Professional Conduct. The ethical questions presented in this inquiry, however, demand a contextual understanding of substantive domestic violence law and proceedings in which that law is applied. The accompanying dis-cussion of criminal and civil domestic violence law reflects the Committee’s understanding of relevant law for the sole purpose of analyzing the issues presented under the Rules of Professional Conduct.

2H.R. Rep. No. 93-1172, 93rd Cong., 2d Sess. 7 (1974).

3 11 D.C. Code, § 2601. The federal Crimi-nal Justice Act, 18 U.SC. § 3006A (2016) (the “FCJA”), requires each federal District Court to establish a plan to furnish representation to indi-gent persons charged with federal crimes, noting that this plan may provide for representation of financially eligible persons involved in “ancillary matters appropriate to the proceedings [for which an FCJA attorney is required].” 18 U.SC. § 3006A(c). The United States Judicial Conference—the con-gressionally created policy-making arm of federal courts—has promulgated a comprehensive regula-tory framework for administering the FCJA in its Guide to Judiciary Policy, Vol. 7, Part A (available online at http://www.uscourts.gov/rules-policies/judiciary-policies//criminal-justice-act-cja-guide-lines) (last visited Sept. 15, 2016).

Section 210.20.30(c) of the Guide to Judiciary Policy provides that “[i]n determining whether representation in an ancillary matter is appropri-ate to the proceedings, the court should consider whether such representation is reasonably necessary … (2) to contribute in some significant way to the defense of the principal criminal charge; [or] (3) to aid in preparation for the trial or disposition of the principal criminal charge.” No comparable District of Columbia guidance exists in connection with administration of its CJA.

4See D.C. Court of Appeals, Obligations of Counsel (2008) (http://www.dccourts.gov/internet/documents/cja_obligations.pdf).

5 Id. at ¶ 4.

6 Attorney Practice Standards for Criminal Defense Representation (2010) [”Practice Stan-dards”]

7 Practice Standards, B-2.

8 See generally D.C. Intrafamily Offenses Act, D.C. Code §§ 16-1001—1059 (2014).

9 See Rule 12, D.C. Superior Court Family Divi-sion Rules on Intra-Family Proceedings; see also D.C. Code § 16-1005(f). A TPO is a temporary measure—lasting up to fourteen (14) days—issued by a judicial officer to provide immediate protective relief enjoining the respondent from having contact with the petitioner until a hearing on the CPO. See D.C. Code § 16-1004.

10 See District of Columbia Prevention of Domestic Violence Amendment Act of 1990, D.C. § 16-1031 et seq.

410 THE DISTRICT OF COLUMBIA BAR June 2017

attorneys representing individual defen-dants in a criminal domestic violence matter may have involvement in a paral-lel CPO hearing:

Defense attorneys representing clients charged in domestic violence cases may find themselves embroiled in litigation they did not expect. In addition to rep-resenting a client in a criminal case stemming from an intra-family offense, the attorney may need to represent that client in civil protection order litiga-tion involving any number of family law issues, or in a criminal contempt trial.11

Typically, CPO hearings are set within two weeks of the petition requesting temporary relief, and this civil proceed-ing generally occurs before the related criminal trial.12

In Cloutterbuck v. Cloutterbuck, the District of Columbia Court of Appeals held that CPO proceedings are, by defi-nition, civil in nature, and that indigent respondents in such proceedings are not entitled to counsel appointed under the CJA.13 Recognizing that subsequent vio-lation of an issued CPO could lead to imprisonment, the Cloutterbuck court nevertheless rejected application of the CJA to the CPO hearing: “We find that the possibility of imprisonment as a pun-ishment for eventual violation of a CPO is too remote as of the time the order is entered to trigger a right to counsel. Furthermore, that outcome is contin-gent upon respondent’s own subsequent behavior.”14

Analysis

A. The Obligation to Provide Clearly Defined, Competent, and Zealous Rep-resentation

CJA attorneys are appointed by the court and the scope of representation is defined by that judicial appointment. Rules of Professional Conduct governing scope and competence provide guidance on the ethical obligations of CJA attor-neys handling criminal domestic violence matters associated with parallel CPO proceedings.

When a lawyer establishes a new attorney-client relationship, Rule 1.5(b) requires, inter alia, that the lawyer com-municate in writing the scope of repre-sentation to the client. Comment [4] to Rule 1.2 further explains that pursuant to such requirement it is also “generally prudent to explain in writing any limits on the objectives or scope of services.”15 Finally, Rule 1.4(b) also requires a law-yer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

Read together, these provisions man-date that the CJA lawyer explain clearly to the client the scope of representation, specifying the particular proceeding in which the lawyer is representing the cli-ent. In addition, when the lawyer is aware that certain matters or proceedings are excluded from the scope of representa-tion (either by agreement or through court appointment), the lawyer should inform the client accordingly.16

B. Competency in Criminal Domestic Violence Matters Associated with Par-allel CPO Hearings

1. Relationship Between Domestic Vio-lence Criminal Matters and Parallel CPO Hearings

Criminal domestic violence matters associated with parallel CPO hearings typically share a common factual and legal nexus. For example, testimony from the CPO hearing will likely involve the same facts and circumstances at issue in the criminal domestic violence mat-ter; the criminal defendant’s ability to invoke her Fifth Amendment rights in one proceeding may be influenced by how and whether she testifies in the other proceeding; both matters may share common discovery materials; and the disposition of the CPO proceeding could impact release status or plea negotiations in the criminal proceeding. For these reasons, the D.C. Public Defender Ser-vice notes that defense lawyers handling criminal domestic violence matters may find themselves “embroiled” in related civil litigation.17

Similarly, the D.C. Bar Legal Eth-ics Committee previously recognized the close nexus between criminal domestic violence matters and parallel CPO pro-

ceedings. In D.C. Ethics Opinion 263, the Committee concluded that a CPO modi-fication proceeding and an associated criminal contempt matter constituted the same “matter” for purposes of applying the Rule 4.2 prohibition on communica-tions with represented parties:

While litigation may have many facets to it, those facets typically have at least some facts, evidence and legal prin-ciples in common. Activities or devel-opments in one facet of a case rarely fail to have implications in others. That circumstance is well-illustrated in the Inquiry before us, where the core ques-tion in a CPO modification motion and in a criminal contempt motion is the same: what, if anything, did the respon-dent do in violation of the CPO.18

While Opinion 263 pertained to com-munications, its conclusions affirm the existence of a close factual and legal nexus between civil CPO hearings and associated criminal domestic violence matters. This nexus implicates standards of competent representation.

Rule 1.1(a) requires a lawyer to pro-vide competent representation to a cli-ent and states that such “representation requires the legal knowledge, skill, thor-oughness, and preparation reasonably necessary for the representation.” Com-ment [5] to Rule 1.1 explains that com-petence includes “adequate preparation and continuing attention to the needs of the representation to assure that there is no neglect of such needs.” Rule 1.3(a) mandates that a “lawyer shall represent a client zealously and diligently within the bounds of law.”

Elements of competent and zealous representation are fact-and matter-spe-cific, involving contextual analysis of the governing legal regime and under-lying details of specific cases. While there is no uniform standard to determine what constitutes competent or zealous representation in criminal domestic vio-lence matters associated with parallel CPO hearings, the close legal and factual relationship between the two proceed-ings strongly suggests that CJA attorneys appointed in the criminal matter should remain mindful of and attentive to the parallel civil proceeding.

Thus, for example, the CJA attorney should seriously consider informing her client that developments in the civil pro-ceeding may have case-dispositive impli-cations for the client’s criminal domestic violence matter. The CJA attorney should

11 Public Defender Service, Criminal Practice Institute Manual at 40.1 (2015) [“CPI Manual”] (emphasis added).The CPI Manual is issued by the Public Defender Service for the District of Colum-bia as a comprehensive primer on the criminal law in the District of Columbia.

12 See CPI Manual at 40.12.

13 556 A.2d 1082 (D.C. 1989).

14 Id. at 1084.

15 Rule 1.2, Comment [4]

16 See also D.C. Legal Ethics Op. 330 (July 2005)

17 See CPI Manual at 40.1. 18 D.C. Legal Ethics Op. 263 (January 1996).

also seriously consider advising her client on how evidence and testimony presented in the CPO hearing will likely have consequences in the criminal mat-ter. Moreover, the CJA attorney should herself strongly consider the importance of attending the CPO hearing—even if she does not enter an appearance—so she might stay apprised of developments and remain available to offer guidance to her client, if the facts and circumstances of the individual case so require.19 And, critically, as discussed above, the CJA attorney should explain to her client that her court-appointed representation extends only to the criminal matter, and not any associated CPO proceeding not-withstanding the common facts and cir-cumstances underlying both.20

2. Propriety of Counseling a Client in the CPO Proceeding Without Entering an Appearance

If CJA counsel appointed to repre-sent a defendant in a criminal proceed-ing determines that her participation in the parallel CPO proceeding is unnec-essary, she should ensure the client is informed of this delineation. Moreover, the CJA counsel should remain vigilant that exclusion of the CPO matter does not bar the provision of competent client service.21 However, even without enter-ing an appearance in the parallel CPO proceeding, the CJA attorney may never-theless provide guidance to her client in the civil matter.

In D.C. Legal Ethics Opinion 330, the Committee concluded that the provision of unbundled legal services was ethically permissible under the D.C. Rules. (Gen-erally, ‘unbundling’ refers to the separa-tion of the legal tasks typically performed together into discrete components, only some of which the client contracts with the lawyer to provide.). The analytical underpinning of LEO 330 is that Rule 1.2 expressly provides that a lawyer and client may agree to the provision of legal services short of a full representation.22 The context in which the limitations of the lawyer’s services arise in this particular inquiry are distinct, however, because the limitations on the scope of the lawyer’s representation are largely defined by the court’s appointment of the CJA attorney in the criminal matter. That is to say, the lawyer has been appointed by the court to represent the client in the criminal matter only, and any duties the lawyer has in connection with the civil case arise solely from her obligation to provide competent, diligent, and zealous representation in the criminal matter. In this sense, the CJA attorney is neither limiting the scope of her representation in the criminal matter nor engaging in the provision of limited scope services in connection with the CPO. Rather, she is keeping abreast of other significant legal matters involving her client that may impact the matter in which she represents her client.

The Committee also considered, and rejected, the possibility that an attorney’s presence at a CPO hearing when such attorney has not entered a formal appear-ance, but seems to be providing assis-tance to a litigant, could be considered “misleading” to the court. In Opinion 330, the Committee concluded that noth-ing in the D.C. Rules requires lawyers to notify the court of their involvement in a matter outside of entering an appearance, even when they are “ghostwriting” briefs and clients appear pro se in the matters in which the briefs are filed:

After carefully examining the D.C. Rules and opinions from various juris-dictions, we conclude that nothing in the D.C. Rules of Professional Conduct requires attorneys who assist pro se litigants in preparing court papers to place their names on these documents or otherwise disclose their involvement. . . . Some opponents of the practice of “ghostwriting” court documents, as it is frequently called, argue that the chief sin of this practice is that it misleads the

court into thinking a litigant is proceed-ing without legal assistance and thus granting special solicitude to the litigant. This, however, is an issue for the courts to identify if they perceive a problem with the practice.

We reach a similar conclusion here. Although the court may well prefer the attorney to enter an appearance in the CPO proceeding, it is not unethical (by virtue of its being misleading) for an attorney to choose not to do so. Should the court inquire of the lawyer, the law-yer must respond that he or she represents the litigant in a related criminal matter.

● ● ● ●

This opinion neither mandates nor discourages a CJA attorney appointed in a criminal domestic violence matter from entering an appearance in a parallel CPO proceeding. However, if the CJA attorney chooses not to enter an appear-ance in the CPO proceeding, she should explain clearly to her client that the CJA authorizes representation only in the criminal matter, and not any related civil proceeding such as the CPO hearing. In addition, the CJA attorney should seri-ously consider advising her client on the implications that testimony and evidence adduced in the civil proceeding might have on the criminal domestic violence matter. Moreover, the CJA attorney may well deem it necessary to attend the CPO hearing and provide guidance to her cli-ent to ensure competent representation in the criminal domestic violence matter.

Published June 2017

Opinion 374

Ethical Obligations Regarding Pro-spective Client Information

Introduction

A lawyer’s ethical obligations to pro-spective clients are set forth in Rule 1.18 of the D.C. Rules of Professional Conduct (“the D.C. Rules”). On its face,

April 2018 THE DISTRICT OF COLUMBIA BAR 411

19 See Rule 1.1(a); Practice Standards, B-2 (rec-ommending CJA attorneys counsel clients concern-ing matters related to their case).

20See D.C. Rule 1.4(b). As detailed above, in certain circumstances, zealous and competent representation may very well require CJA counsel to attend the CPO hearing and offer advice to her client during that hearing. While the D.C. Bar Legal Ethics Committee cannot address the compensation of CJA counsel for tasks involving the CPO hearing, the close legal and factual nexus between this civil proceeding and the criminal domestic violence mat-ter strongly suggests that the D.C. Superior Court might consider authorizing payment for work close-ly associated with providing zealous and competent representation in a Court-appointed matter. Cf. Guide to Judiciary Policy, § 210.20.30(c) (explain-ing that, in connection with the FCJA, federal district courts should consider a variety of factors in determining whether to authorize compensation in matters ancillary to that for which counsel was appointed: “[T]he court should consider whether such representation is reasonably necessary (1) to protect a constitutional right; (2) to contribute to some significant way to the defense of the principal criminal charge; [or] (3) to aid in preparation for the trial or disposition of the principal criminal charge . . . ”).

21 See Rules 1.1, Rule 1.2, Comment [5], and D.C. Rule 1.5(b).

22 See Rule 1.2(c).

1 A “prospective client” is “[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.” D.C. R. Prof’l Conduct 1.18(a). As the commentary to Rule 1.18 explains, however, “[a] person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a ‘prospective cli-ent’ . . . .” D.C. R. Prof’l Conduct 1.18 cmt. [3].

Rule 1.18 imposes only two obligations on a lawyer. First, regardless of whether a client-lawyer relationship ensues, Rule 1.18(b) prohibits “a lawyer who has had discussions with a prospective client” from “us[ing] or reveal[ing] informa-tion learned in the consultation, except as permitted by Rule 1.6.” Because “the duty of confidentiality . . .attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be estab-lished,” a lawyer’s obligations under Rule 1.6 also extend to information relat-ing to a prospective client consultation—e.g., notes regarding the lawyer’s mental impressions of the prospective client or matter, legal research, or other informa-tion obtained through subsequent inves-tigation.2 Second, Rules 1.18(c) and (d) prohibit a lawyer from “represent[ing] a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received a confidence or secret from the prospective client,” unless both the affected client and the prospective client have given informed consent.3

Where a prospective client elects not to retain the lawyer’s services, or the law-yer is either unwilling or unable to repre-sent the prospective client, two questions remain. First, what ethical obligation, if any, does a lawyer have to preserve either the information that the lawyer learned in the prospective client consultation or other information relating to the consul-tation? Second, what ethical obligation, if any, does a lawyer have to turn over such information to the prospective cli-ent, either at the time that the lawyer and/or prospective client decide not to form a client-lawyer relationship or thereafter?4

Until such time as a final decision is made regarding whether to form a client-lawyer relationship, a lawyer has an obligation under Rules 1.18 and 1.15 to safeguard property, including intangible property, entrusted to the lawyer by the prospective client. For example, in addi-tion to tangible property, a prospective client may entrust a lawyer with certain intellectual property during a prospective client consultation that the lawyer must safeguard while evaluating whether to represent the prospective client. Once a final decision is made not to form a client-lawyer relationship, Rules 1.18 and 1.15 require the lawyer to return such property to the prospective client or otherwise dispose of it in accordance with the prospective client’s instructions. In the absence of any substantive legal or contractual obligation to do so, however, the lawyer has no obligation to preserve or turn over to a prospective client infor-mation learned in or relating to a pro-spective client consultation—including the lawyer’s notes or other research or information that the lawyer generates or obtains—in which the prospective client has no property interest.5,6

Applicable Rules

• Rule 1.6 (Confidentiality of Infor-mation

• Rule 1.7 (Conflict of Interest: General• Rule 1.15 (Safekeeping Property)• Rule 1.16 (Declining or Terminat-

ing Representation)• Rule 1.18 (Duties to Prospective

Clients)• Rule 8.4 (Misconduct)

Discussion

A lawyer may obtain prospective client information from an initial consultation, subsequent investigation to determine whether the lawyer is willing and able to represent the prospective client, or both. As the commentary to Rule 1.18 explains:

It is often necessary for a prospective client to reveal information to the law-yer during an initial consultation prior to the decision about formation of a client-lawyer relationship. The client may disclose such information as part of the process of determining whether the client wishes to form a client-lawyer relationship. The lawyer often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer is willing to undertake. . . .7

In addition, a lawyer may want to inves-tigate the prospective client’s claims or conduct preliminary legal research before forming a client-lawyer relation-ship. Rules 1.6 and 1.18 require a lawyer to protect the prospective client’s confi-dences and secrets to the same extent that the lawyer must protect the confidences and secrets of a client.8

Under Rule 1.18(c), a lawyer or other lawyers in the lawyer’s law firm may be prohibited from representing a client based on information that a prospective client has disclosed in a consultation.9

412 THE DISTRICT OF COLUMBIA BAR April 2018

2See D.C. R. Prof’l Conduct 1.6 cmt. [9] (“Although most of the duties flowing from the client-lawyer relationship attach only after the cli-ent has requested the lawyer to render legal services and the lawyer has agreed to do so, the duty of con-fidentiality imposed by this rule attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be established.”).

3If a lawyer is disqualified from representing a client under Rule 1.18(c), “no lawyer in a firm with which that lawyer is associated may knowingly under-take or continue representation in such a matter,” unless “(1) both the affected client and the prospective client have given informed consent, or (2) the disquali-fied lawyer is timely screened from any participation in the matter.” D.C. R. Prof’l Conduct 1.18(c) & (d).

4The questions whether and at what point a lawyer and prospective client form a client-lawyer relationship are matters of substantive law beyond the scope of this opinion. When such a relationship is formed, however, a lawyer’s ethical obligations to preserve and turn over information to the client are governed by Rules 1.16(d) and 1.8(i). See D.C. Legal Ethics Op. 333 (2005).

5The questions whether and to what extent a pro-spective client may have a property or other substan-tive legal interest in such information are beyond the scope of this opinion, as is the question whether any substantive legal obligation outside the Rules of Pro-fessional Conduct prohibits destruction of the infor-mation. Although this Committee does not opine on questions of law outside of the Rules of Professional Conduct, we are unaware of any authority holding that a prospective client has a property interest in a lawyer’s notes or other research or information that the lawyer generates or obtains as the result of a prospective client consultation.

6We note that “an attorney’s ethical duties to a client arise not from any contract but from the establishment of a fiduciary relationship between attorney and client.” In re Ryan, 670 A.2d 375, 379 (D.C. 1996). Thus, where a lawyer and prospective client decide to form a client-lawyer relationship, the lawyer must satisfy the requirements of D.C. Rules 1.16(d) and 1.8(i), regardless of any contrac-tual agreement. Cf. id. at 380 (“Because ethical responsibilities exist independently of contractual rights and duties, we hold that any supposed fail-ure of a client to fulfill a retainer agreement is no defense to a disciplinary charge.”).

7D.C. R. Prof’l Conduct 1.18 cmt. [3].

8See D.C. R. Prof’l Conduct 1.6 cmt. [9] (“Although most of the duties flowing from the client-lawyer relationship attach only after the cli-ent has requested the lawyer to render legal services and the lawyer has agreed to do so, the duty of con-fidentiality imposed by this rule attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be established. . . .”); D.C. R. Prof’l Conduct 1.18(b) & cmt. [3] (“Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consulta-tion, except as permitted by Rule 1.6. . . . Such information is generally protected by Rule 1.6, even if the client or lawyer decides not to proceed with the representation. . . . The duty to protect confi-dences and secrets exists regardless of how brief the initial conference may be. . . .”).

9See D.C. R. Prof’l Conduct 1.18(c) (“A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a pro-spective client in the same or a substantially related matter if the lawyer received a confidence or secret from the prospective client, except as provided in paragraph (d). If a lawyer is disqualified from rep-resentation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a mat-ter, except as provided in paragraph (d).”).

To minimize the risk of disqualifica-tion, “a lawyer considering whether or not to undertake a new matter may limit the initial interview only to information that does not constitute a confidence or secret, if the lawyer can do so and still determine whether a conflict of interest or other reason for non-representation exists.”10 In addition, “[a] lawyer may condition conversations with a prospec-tive client on the person’s informed con-sent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter.”11 A lawyer and prospective cli-ent also may enter into an agreement in which the prospective client consents to the lawyer’s subsequent disclosure and use of information learned in or related to the prospective client consultation.12

Where a prospective client “entrusts valuables or papers to the lawyer’s care,” the commentary to Rule 1.18 directs a lawyer to follow Rule 1.15.13 Rule 1.15(a) requires a lawyer to “hold prop-erty of . . . third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property” and to identify and safe-guard such property.14 Rule 1.15(c) gen-erally requires the lawyer to “promptly deliver” and, upon request, “render a full accounting regarding such property” to the prospective client.15 By its terms,

however, Rule 1.15 does not require a lawyer to preserve or turn over docu-ments or other information generated by or at the direction of the lawyer—includ-ing notes, legal research, or information obtained through subsequent investiga-tion—unless the prospective client has a property interest in the information.16

Where a prospective client elects not to retain a lawyer’s services, or the lawyer is either unwilling or unable to represent the prospective client, the D.C. Rules impose no obligation on the lawyer to preserve information learned in or related to the prospective client consultation in which a prospective client has no prop-erty interest. Similarly, a lawyer has no obligation under the D.C. Rules to turn over to a prospective client, either at the time that the lawyer and/or prospective client decide not to form a client-lawyer relationship or thereafter, information learned in or related to a prospective cli-ent consultation.

Rule 1.16(d) requires a lawyer, in connection with any termination of rep-resentation, to “take timely steps to the extent reasonably practicable to protect a client’s interests, such as . . . surren-dering papers and property to which the client is entitled.” Where a prospective client elects not to retain a lawyer’s ser-vices or the lawyer is either unwilling or unable to represent the prospective client, however, the prospective client is not a “client” and there is no representation to terminate. Accordingly, Rule 1.16(d) would not apply.

Conclusion

As the commentary to Rule 1.18 notes, “prospective clients should receive some but not all of the protection afforded clients.”17 Thus, although a lawyer must safeguard and return documents or other property entrusted to the lawyer by a pro-spective client while evaluating wheth-er to form a client-lawyer relationship, absent a substantive legal or contractual obligation to do so, a lawyer has no obli-gation under the D.C. Rules to preserve or turn over to a prospective client informa-

tion learned in or related to a prospective client consultation, when a client-lawyer relationship is not established.18

Published April 2018

Opinion 375

Ethical Considerations of Crowdfunding

Lawyers are generally free to represent clients who pay for legal services through crowdfunding. The ethical implications of crowdfunding a legal representation vary depending on the lawyer’s level of involvement in the crowdfunding. When the client directs the crowdfunding and the lawyer is merely aware of it, the lawyer incurs no specific ethical obliga-tions although the lawyer should consider potential risks associated with receipt of such funds and may counsel the client on the wisdom of publicly sharing con-fidential information. When the lawyer directs the crowdfunding, the lawyer must comply with the Rules governing a lawyer’s receipt of money from third parties. Further, a lawyer who directs the crowdfunding should be cognizant of ethical obligations regarding fee agree-ments, communications with donors, and the management of the funds raised.

Applicable Rules

• Rule 1.2 (Scope of Representation) Rule 1.3 (Diligence and Zeal) Rule 1.4 (Communication) Rule 1.5 (Fees) Rule 1.6 (Confidentiality of Infor-

mation)

November 2018 THE DISTRICT OF COLUMBIA BAR 413

10See D.C. R. Prof’l Conduct 1.18 (c) & cmt. [4].

11Id. at cmt. [5].

12See id. (“[T]he prospective client may also consent to the lawyer’s subsequent use of informa-tion received from the prospective client.”).

13D.C. R. Prof’l Conduct 1.18 cmt. [9] (“For a lawyer’s duties when a prospective client entrusts valuables or papers to the lawyer’s care, see Rule 1.15.”).

14See D.C. R. Prof’l Conduct 1.15(a) (“A lawyer shall hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds of clients or third persons that are in the lawyer’s possession (trust funds) shall be kept in one or more trust accounts maintained in accordance with paragraph (b). Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termina-tion of the representation.”).

15See D.C. R. Prof’l Conduct 1.15(c) (“Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property, subject to Rule 1.6.”).

16A lawyer’s failure to safeguard or return documents or other property that a prospective client entrusts to the lawyer also may implicate Rules 8.4(b) and (c). See D.C. R. Prof’l Conduct 8.4(b) & (c) (“It is professional misconduct for a lawyer to . . . [c]ommit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; [or] [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”).

17D.C. R. Prof’l Conduct 1.18 cmt. [1].

18A lawyer may choose to preserve informa-tion learned in or related to a prospective client consultation for a variety of reasons: for example, to assist the lawyer in detecting and avoiding future conflicts of interest; to defend against allegations that the lawyer violated Rule 1.6 and/or 1.18; or merely to maintain a positive relationship with prospective clients who later may need the informa-tion. If a lawyer chooses to do so, or to turn over such preserved information, however, the lawyer should be mindful of any potential conflicts of interest that may arise if the lawyer’s possession or subsequent disclosure of the information could be detrimental to a current client. See D.C. R. Prof’l Conduct 1.7(b)(4) (“Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if . . . [t]he lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party . . . .”). In addition, as stated supra at n.5, the question of whether any substantive legal obligation outside the Rules of Professional Conduct prohibits destruction of prospective client information is beyond the scope of this opinion.

Rule 1.8 (Conflicts of Interest: Spe-cific Rules)

Rule 1.15 (Safekeeping Property) Rule 2.1 (Advisor) Rule 4.1 (Truthfulness in State-

ments to Others) Rule 5.4 (Professional Indepen-

dence of a Lawyer) Rule 8.4 (Misconduct)

Inquiry

The Committee has received numer-ous inquiries asking whether and how lawyers may ethically raise money (or accept money raised) via crowdfunding to pay for legal services for one or more clients. In general, crowdfunding is the process of raising money from third parties for the benefit of another. While the term is most often used to describe the practice of raising small amounts of money from numerous people through social media and other platforms, as used in this opinion, “crowdfunding” refers to the solicitation and acceptance of such funds to pay for someone else’s legal representation.1

Crowdfunding may provide financial resources for individuals who might oth-erwise be unable to secure counsel. This opinion outlines the ethical consider-ations of crowdfunding and provides guidance about doing so consistent with the D.C. Rules of Professional Conduct (“Rules”).

Crowdfunding is generally structured in one of two ways: 1) equity-based funding, in which the investor retains an ownership interest in either the recipi-ent (here, the law firm or its client) or in future recoveries/earnings/profits of the firm or matter, or 2) donation-based funding, in which the donor receives no financial interest in the legal matter,2

but may receive other incentives. This opinion focuses solely on donation-based funding and does not address equity-based funding, though some of the same ethical considerations apply.3

Analysis

The Committee notes, at the outset, that the ethical implications of crowdfunding a legal representation vary depending on the lawyer’s level of involvement in the crowdfunding.

I. Lawyer’s Receipt of Funds Raised by Client

There is nothing in the Rules prohibit-ing a lawyer from accepting funds from a client who has raised or is raising money through crowdfunding. It is not unusual for clients to rely on money collected from family or friends to pay for legal services. The practical reality that a cli-ent may, through social media or other platforms, cast a broad net and collect funds from acquaintances and strangers does not, standing alone, impose specific ethical obligations on a lawyer. However, because there may be heightened risk of fraud, money laundering, and other criminal activities in connection with any such exchange of funds, a lawyer should be cognizant of such risks and take rea-sonable precautions to avoid unwittingly engaging or assisting in unethical or illegal conduct.

For lawyers, ethical risk accompanies the legal risk. When illegal conduct of a client is suspected or known, specific ethical duties arise under the Rules.4 For

example, when a lawyer suspects or knows that a client has obtained funds to pay for the legal representation in a manner that is illegal or otherwise poses risk for the client, the lawyer has ethical obligations to counsel the client on such risks and/or the limits of what the lawyer is able to do for the client under the eth-ics rules and in light of the lawyer’s own obligation to comply with the law.5

A lawyer should consider counseling his or her client regarding disclosures to third parties. Crowdfunding typically entails some level of disclosure to third parties about the predicate need for coun-sel. Because of their financial support, crowdfunding contributors may be inter-ested in the status of or information about the client’s matter. Due to the risk of waiver of the attorney-client privilege, or simply for strategic reasons, a lawyer who knows that a client is crowdfunding should provide the appropriate level of guidance to the client regarding disclosures to third parties, whether such disclosures occur on a social media platform or privately in discussions with friends and family.6 In addition, depending on the circumstances, a lawyer may also consider discussing the wisdom of the client’s funding choices under Rule 2.1, which provides that “[i]n rendering advice, a lawyer may refer not only to law but to other consider-ations such as moral, economic, social, and political factors, that may be relevant to the client’s situation.”

II. Crowdfunding by a Lawyer

A lawyer who undertakes or exerts con-trol over the crowdfunding effort has spe-cific ethical responsibilities under the Rules.

A. Lawyer’s Acceptance of Fees from Third Parties

Whether a lawyer may accept com-pensation from third parties for legal fees is governed by the requirements of Rule 1.8(e). The Rule states that,

A lawyer shall not accept compensation for representing a client from one other than the client unless:

414 THE DISTRICT OF COLUMBIA BAR November 2018

1Some D.C. lawyers have expressed an interest in starting a general “benevolent fund” that would allow them to raise money for the purpose of pro-viding legal representation to clients unable to pay the lawyers’ fees. The Committee notes that law-yers who wish to engage in such fundraising along with the provision of legal services may need to do so through a separate nonprofit organization with the appropriate level of supervision and review by an independent board of advisors and in accordance with applicable law.

2The language used to describe crowdfunding arrangements varies. In this opinion, the Com-mittee uses the term “donation-based funding” to describe arrangements in which contributors have no expectation of receiving any personal economic return in exchange for their financial contribu-tions. While contributors may enjoy philanthropic good will and perhaps receive non-confidential information about the legal representation, they will not receive a financial interest in the matter or any

recovery, nor will their donated funds be repaid absent express agreement (see part II D. Manage-ment of Funds).

3For a helpful summary of crowdfunding termi-nology and approaches, see N.Y. State Bar Ass’n Comm on Prof’l Ethics Formal Op. 1062 (2015).

4See, e.g., Rule 1.2(e) (prohibiting a lawyer from assisting a client in criminal or fraudulent conduct), Rule 8.4(b) (prohibiting a lawyer from engaging in criminal acts), and Rule 8.4(c) (prohibiting a lawyer from engaging in dishonest conduct). Lawyers must also be cognizant of their obligations under substan-tive law to avoid participating in or counseling their clients on activity that may constitute money-launder-ing. See American Bar Ass’n Standing Comm. on Eth-ics & Prof’l Responsibility, Formal Op. 463 (2013). Similarly, crowdfunding does not alter a lawyer’s professional responsibilities prohibiting the knowing acceptance of illegally obtained funds as payment for services. See “Houston, We Have a Problem: Clients Who Engage in Unlawful Conduct During Your Representation,” Winter / Spring 2015 Edition of the ABA White Collar Crime Committee Newsletter, pages 1, 9-11, discussing ABA Model Rule 1.2(d) (ethical issues and other considerations when criminal proceeds are used to pay attorneys’ fees).

5See Rule 1.2(e) (permitting a lawyer to “discuss the legal consequences of any proposed course of conduct with a client” and to “counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law”) and Rule 1.4(b) (requiring a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions about the representation”).

6For further discussion of this topic, see D.C. Legal Ethics Opinion 371(2016)(Social Media II: Use of Social Media in Providing Legal Services).

November 2018 THE DISTRICT OF COLUMBIA BAR 415

(1) The client gives informed con-sent after consultation;(2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer rela-tionship; and(3) Information relating to represen-tation of a client is protected as required by Rule 1.6.

Thus, when a lawyer assists a client in crowdfunding a legal representation, each provision of Rule 1.8(e) must be met. With respect to Rule 1.8(e)(1), “informed consent” is a defined term under Rule 1.0(e), and “denotes the agreement by a person to a proposed course of con-duct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Under Rule 1.8(e)(2), the lawyer must ensure there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer rela-tionship. Rule 5.4(c) also prohibits a law-yer from allowing a person who pays the lawyer to provide legal services to a third party from “direct[ing] or regulat[ing] the lawyer’s professional judgment in rendering such legal services.” In the context of crowdfunding, a lawyer may not allow donors, whether family mem-bers or strangers, to exert undue influ-ence with respect to the objectives of the representation or the legal strategies employed. This duty remains unchanged notwithstanding the social media and other connections that often accompany crowdfunding.

In addition to the guidance a lawyer provides to the client regarding disclo-sures to third parties (as discussed in part I), under Rule 1.8(e)(3) a lawyer is also prohibited from voluntarily sharing a client’s confidential information with donors. Rule 1.6 provides that, in the absence of the client’s informed con-sent or other enumerated exception, a lawyer shall not use or reveal a client’s confidences or secrets. While lawyers should always be mindful of their duty of confidentiality, the informal nature of communications made through social media platforms warrants a reminder of this duty when using these platforms for crowdfunding.

B. Fee AgreementsAlthough it may be tempting to forgo

a written engagement agreement in a crowdfunded representation that has the appearance of being “free” from the cli-ent’s perspective, lawyers must meet the

requirements of Rule 1.5 regarding fees. Specifically, Rule 1.5(b) requires that, “[w]hen the lawyer has not regularly represented the client, the basis or rate of the fee, the scope of the lawyer’s rep-resentation, and the expenses for which the client will be responsible shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.”7 Even when a lawyer has regularly represented a client such that a written engagement agreement may not be required, crowd-funding can trigger areas of confusion that may not be present in a traditional client-self pay situation, such as owner-ship of excess crowdfunds raised and responsibility for payment if crowdfunds fall short of legal fees and expenses incurred. Accordingly, the Committee strongly encourages lawyers to have a written fee agreement for every repre-sentation involving crowdfunding by the lawyer.

C. Communications with Donors and Prospective Donors

A lawyer who conducts the crowd-funding on behalf of a client must ensure that the communications used to solicit the funds are truthful.8 The level of detail and transparency required will depend on the circumstances but must take into account Rule 1.6 and any other confi-dentiality obligations. For instance, a lawyer should avoid providing specific information about how the funds will be used to effectuate the legal strategy. A lawyer’s professional obligations to exer-cise his or her independent judgment and to zealously represent the client remain paramount, regardless of the source of the funds.9 The Committee recommends informing contributors that their donat-ed funds are nonrefundable, that they will not receive confidential information about the client’s matter, and that they may not interfere with or otherwise exert control over the lawyer’s work.

D. Management of Funds The fact that crowdfunds come from

sources other than the client does not alter the fact that they are client funds

and must be treated as such consistent with the Rules.

Funds collected on behalf of a cli-ent by the lawyer through crowdfunding must be treated as advanced fees. Unless there is an agreement with the client under Rule 1.15(e), these funds must be placed in trust for the client, as required by Rules 1.15(a) and (b). The lawyer should invoice the client and transfer funds to the operating account only as fees are earned and expenses incurred, or as otherwise consistent with the guidance provided in D.C. Legal Ethics Opinion 355.10 A lawyer should monitor any fun-draising activity that he or she controls, as a lawyer who solicits and receives excessive funds on behalf of his or her client may run the risk of violating one or more ethics rules.11 To mitigate this risk, a lawyer should have a plan (approved by the client) to terminate crowdfunding when it appears that sufficient funds have been raised.

Although lawyers are generally able to seek informed consent, under Rule 1.15(e), to place unearned fees and expenses in a lawyer’s or law firm’s operating account rather than the trust account, the Committee recommends caution around this exception when crowdfunding. Crowdfunding increases the risk that a lawyer could be perceived as seeking an unreasonable fee under Rule 1.5(a).12 This is in part because of the ease by which the amount of money in excess of what is required to fund the representation may be raised and in part because some clients may exercise less scrutiny over the lawyer’s bills since the client is not personally, or at least not solely, responsible for payment. Placing crowdfunds in a trust account until the lawyer earns the fee or incurs the expense ensures that there is a clear delineation of lawyer funds and client funds.

7Comments [1] through [3] to Rule 1.5 further describe how a lawyer may fulfill his or her duties under Rule 1.5(b).

8See Rules 4.1 (Truthfulness in Statements to Others) and Rule 8.4(c) (“A lawyer should not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.).

9Rule 5.4(c) (see discussion supra Part II.A) and Rule 1.3 (Diligence and Zeal).

10Rule 1.15 obligates lawyers to treat unearned fees and expenses, including “flat” or prepaid fees, as the property of the client until the money has been earned, unless a different arrangement is reached. See Rule 1.15(e). This analysis, which was promulgated by the D.C. Court of Appeals in In re Mance, 980 A.2d 1196 (2009), is outlined in D.C. Legal Ethics Opinion 355 (2010).

11See, e.g., Rule 4.1 (Truthfulness in Statements to Others), Rule 8.4(c) (which prohibits a lawyer from engaging in dishonest or deceitful conduct) and Rule 1.5(a) (which prohibits a lawyer from seeking an unreasonable fee).

12The Philadelphia Bar Association Professional Guidance Committee highlighted the possibility of an unreasonable fee as a risk of crowdfunding a litigation. See Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2015-6.

Crowdfunding may also increase the risk of disputed ownership of funds. For example, if a donor claims that he or she donated more money than intended, or directed it to the wrong recipient, a law-yer would mitigate his or her ethical risk by ensuring such funds remain in trust until they are earned.13

In the absence of an appropriate agreement, unearned crowdfunds are the property of the client and should be returned to the client upon the matter’s conclusion or termination of the repre-sentation, unless the client directs the lawyer to do otherwise. A matter may conclude for any number of reasons, including a natural conclusion, the cli-ent’s decision not to pursue the case, settlement or any other resolution, or because the attorney-client relation-ship terminates, and each has different implications for prepaid legal fees and expenses, including crowdfunds. Pur-suant to Rule 1.5(b), this point should be addressed with clients in engage-ment agreements and may be included in disclosures to donors, subject to Rule 1.6.

A lawyer may suggest that the client donate excess crowdfunds to a charity of the client’s choice. Ultimately, however, the lawyer must abide by the client’s decision and/or an appropriate agree-ment regarding disposition of unearned crowdfunds.

The Committee believes it would be unethical for a lawyer personally to claim unearned crowdfunds at the con-clusion of a representation. Unlike a contingency fee case, where a lawyer may on occasion obtain a “windfall” due to an unexpected early settlement or other turn of events (and runs an equal risk of earning nothing at all if an unfa-vorable outcome results), in this situa-tion the lawyer incurs no equivalent risk. A lawyer who claims unearned fees at the conclusion of such a representation risks violating Rule 1.5(a).

Conclusion

Although the term crowdfunding is relatively new, payment by third parties for another’s legal representation is not. The Rules apply to a lawyer’s receipt and disposition of all funds received in connection with a client representation, regardless of their source.

Published November 2018

Opinion 376

Mandatory Arbitration Provisions in Fee Agreements

Fee agreements containing mandatory arbitration provisions are “ordinary fee arrangements,” and the requirements of Rule 1.8 which addresses business trans-actions between lawyers and clients do not apply. The standard for obtaining cli-ent consent to fee agreements containing mandatory arbitration provisions is set forth in Comment [13] to Rule 1.8, and Legal Ethics Opinions 211 and 218 are superseded by Comment [13] and this opinion.

Applicable Rules

• Rule 1.2 (Scope of Representation)• Rule 1.0(e) (Definition of “Informed

Consent”)• Rule 1.4 (Communication)• Rule 1.5 (Fees)• Rule 1.8 (Conflict of Interest: Specific

Rules)

Inquiry

The Committee has received an inquiry as to whether D.C. Legal Ethics Opinions 211 and 218 state the current requirements for a mandatory arbitration provision in a fee agreement to comply with the D.C. Rules of Professional Con-duct, in light of the 2007 amendments to the D.C. Rules of Professional Conduct, in particular Comments [1] and [13] to Rule 1.8 (hereinafter “Comment [1]” and “Comment [13]”).1

Discussion

Legal Ethics Opinion 211 (Fee Agree-ments; Mandatory Arbitration Clauses) and Legal Ethics Opinion 218 (Retainer Agreement Providing for Mandatory Arbitration of Fee Disputes Is Not Uneth-ical) were issued by the Committee in May 1990 and June 1991, respectively. In the more than twenty-five years since, the use of arbitration as a means for dispute resolution has proliferated, and

this development, together with the 2007 amendments to the D.C. Rules of Profes-sional Conduct, have led the Committee to determine it is the appropriate time to revisit these opinions. A brief summary of these two prior opinions and the 2007 amendments to the Rules is set forth below.

A. Opinion 211

The retainer agreement at issue in Opinion 211 contained a provision requir-ing the firm and the client to arbitrate claims by the firm against its client for unpaid fees and claims against the firm for malpractice. In analyzing whether such mandatory arbitration provisions in fee agreements would be permitted, the Committee looked to Rule 1.8(a) and to D.C. Legal Ethics Opinion 190 (Retain-er Agreement Mandating Arbitration of Attorney-Client Disputes) (1988), which was issued prior to the promulgation of Rule 1.8. The Committee disagreed with the pre-Rule 1.8(a) conclusion in Opinion 190 that a lawyer could include a manda-tory arbitration provision provided that the lawyer made full disclosure to the cli-ent of any rights the client may waive by agreeing to arbitration and that the law-yer must not create arbitration procedures that violated DR 6-102(A); Opinion 190 did not require the client to obtain advice from independent counsel.

In Opinion 211, the Committee deter-mined that Opinion 190 was “incorrect in its belief that the complex nature of arbitration could be adequately disclosed to a lay client.” In reaching this determi-nation, the Committee was guided by its belief that it was “unrealistic” to expect that lawyers could provide their clients with sufficient information regarding arbitration so that the client could give his informed consent to a mandatory arbitration provision.

The Committee also relied on Rule 1.8(a), which requires independent review by counsel of any “business trans-action” between a lawyer and a client. The Committee acknowledged, however, that a mandatory arbitration provision did not “precisely fit the language of Rule 1.8(a).” It also described mandatory arbitration provisions as “atypical” for fee agreements and on that basis deter-mined that lawyers must bring attention to that provision at the time the fee agree-ment is entered into so it can be consid-ered fully by the client. Ultimately, the Committee concluded that “mandatory arbitration agreements covering all dis-putes between lawyer and client are not permitted under either our prior Opinions

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13Rule 1.15(d) requires a lawyer to keep dis-puted funds in trust.

1 Rule XIII of the District of Columbia Court of Appeals’ Rules Governing the Bar (“Rules Govern-ing the Bar”) states that: “[a]n attorney subject to the disciplinary jurisdiction of this Court shall be deemed to have agreed to arbitrate disputes over fees for legal services and disbursements related thereto when such arbitration is requested by a present or former client….” The arbitration shall take place before the ACAB, unless the client and attorney agree otherwise. See Rule XIII of the Rules Governing the Bar.

February 2019 THE DISTRICT OF COLUMBIA BAR 417

or Rule 1.8(a) unless the client is in fact counseled by another attorney.”

B. Opinion 218

Opinion 218 was issued by the Com-mittee not long after Opinion 211 and also addressed mandatory arbitration clauses in fee agreements. Unlike Opin-ion 211, however, Opinion 218 was limited to fee disputes. The inquiry addressed in Opinion 218 was brought to the Committee by the Attorney-Client Arbitration Board (“ACAB”), an arbitra-tion service provided by the D.C. Bar to its members and their clients to resolve solely disputes about legal fees. The ACAB inquired about the impact of Opinion 211 on fee agreements providing for mandatory arbitration of fee disputes before the ACAB.

The Committee distinguished the man-datory arbitration provisions in fee agree-ments under the ACAB rules from the arbitration provision at issue in Opinion 211. Unlike the possible AAA arbitra-tion discussed in Opinion 211, the ACAB rules and procedures are relatively sim-ple. The fees are low and the arbitrators are not compensated. In addition, the Committee determined that the ACAB staff was able to advise clients who were contemplating signing fee agreements with mandatory arbitration provisions about fee arbitration, its advantages and disadvantages, as well as its alternatives.

Based on these features of a fee arbi-tration before the ACAB, the Committee determined in Opinion 218 that a client could be adequately informed of the pros and cons of mandatory arbitration so that the client could make a decision about whether to enter into a fee agree-ment that contained a provision requiring mandatory arbitration under the ACAB’s rules and procedures. The Committee required, however, that “the client be advised in writing that counseling and a copy of the ACAB’s rules are available through the ACAB staff and further that the lawyer encourage the client to contact the ACAB for counseling and informa-tion prior to deciding whether to sign the agreement and that the client consent in writing to mandatory arbitration.”

C. 2007 Amendments

The February 2007 amendments to the D.C. Rules of Professional Conduct added two comments to Rule 1.8 that directly impact Opinions 211 and 218. Comment [1] to Rule 1.8 states that para-graph (a) “does not apply to ordinary fee

arrangements between client and lawyer, which are governed by Rule 1.5 . . . .” In addition, Comment [13] states: “Rule 1.8(g) does not, however, prohibit a law-yer from entering into an agreement with the client to arbitrate legal malpractice claims, to the extent that such agreement is valid and enforceable and the client is fully informed of the scope and effect of the agreement.”

Analysis

For the reasons discussed below, the conclusions reached by the Committee in Opinions 211 and 218 are not consistent with amended Comments [1] and [13] to Rule 1.8. These comments, when applied to mandatory arbitration provisions in fee agreements, require the Committee to loosen the requirements set forth in Opinions 211 and 218.2

A. The Effect of Comment [13] on Opinions 211 and 218

Comment [13] speaks specifically to agreements to arbitrate legal malpractice claims and deems such agreements per-missible provided that the client is “fully informed of the scope and effect of the agreement.” This explanation is in con-flict with the mandates of Opinion 211, which required much more, including that the client must in fact receive advice from independent counsel regarding the arbitration provision. Comment [13] rec-ognizes the evolution and proliferation of arbitration as an alternative dispute reso-lution method that has occurred since the issuance of Opinion 211.3 Because of this change, clients are now likely to be able to understand the “complex nature” of arbitration in a way they might not have been able to in the early nineties when arbitration was less common.

In light of Comment [13], the Com-mittee determines that the more onerous

requirements imposed by Opinion 211 are no longer required. The same is true for Opinion 218, which deals with a narrow subset of arbitration provisions – those limited to fee arbitrations before the ACAB. Comment [13] specifically addresses agreements to arbitrate legal malpractice claims, and it was arbitra-tion agreements with this scope that caused the Committee great concern in Opinion 211. To the extent Comment [13] has rendered such agreements gen-erally permissible as long as the client is “fully informed of the scope and effect of the agreement,” more narrow agreements (i.e., those limited to the arbitration of fee disputes) should not have different, more burdensome requirements related to obtaining client consent.

B. Application of Comment [1] to Rule 1.8 to Fee Agreements Contain-ing Mandatory Arbitration Provisions

Although the 2007 amendments to Comment [13] standing alone are enough to convince the Committee that agree-ments between lawyers and clients to arbitrate fee disputes do not fall with-in the scope of Rule 1.8(a), the 2007 amendments to Comment [1] of Rule 1.8 also lend support to such a conclusion.

Comment [1] explains that the purpose of the requirements of paragraph (a) is to prevent “the possibility of ‘overreaching’ when a lawyer participates in a “business, property or financial transaction with a client.” However, Comment [1] now specifically states that the requirements of 1.8(a) “do not apply to ordinary fee arrangements between client and law-yer, which are governed by Rule 1.5….” The Comment also provides a specific example of a “non-ordinary fee arrange-ment” that would subject a lawyer to the requirements of 1.8(a), namely, “when a lawyer accepts an interest in a client’s business or other non-monetary property as payment of all or some of the fee.”

We conclude that fee arbitration pro-visions are ordinary fee arrangements within the meaning of Comment [1] to Rule 1.8(a). First, in the many intervening years since the Committee issued Opinion 211, the use of arbi-tration clauses in fee agreements has grown considerably, and the Commit-tee’s description in Opinion 211 of such clauses as “atypical” is no longer accu-rate. As the American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility noted as early as 2002: “The use of binding arbi-tration provisions in retainer agreements

2 A lawyer’s failure to comply with an obliga-tion or prohibition imposed by a D.C. Rule of Professional Conduct is a basis for invoking the disciplinary process. See D.C. Rules, SCOPE [3]. The Comments to the D.C. Rules are promul-gated by the District of Columbia Court of Appeals. Although they do not add obligations to the Rules, they provide guidance for interpreting the Rules and practicing in compliance with them. Id. at [1]. Comment [13] was promulgated by the District of Columbia Court of Appeals after Opinions 211 and 218 were issued by this Committee. Comment [13] therefore controls the use of mandatory arbitration clauses in fee agreements, and the conflicting guid-ance offered in Opinions 211 and 218 must not be followed.

3 See ABA Comm. on Ethics & Prof’l Responsi-bility, Formal Op. 425 (2002).

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has increased significantly in recent years.” ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 425 (2002). The increase in mandatory arbitration provisions in fee agreements reflects the overall trend towards greater reliance on arbitration to resolve commercial and other disputes.

Second, the example in Comment [1] of a non-ordinary fee arrangement, “when a lawyer accepts an interest in a client’s business or other non-monetary property as payment of all or some of the fee” underscores the spe-cific harm for which the protections of Rule 1.8(a) are deemed necessary: to ensure fairness to the client when the lawyer may be in a better position by virtue of legal skill and training to assess the value of a client’s business or non-monetary property and there-fore potentially take advantage of the client. As the Committee explains in D.C. Legal Ethics Opinion 300 (Acceptance of Ownership Interest in Lieu of Legal Fees) (2000):

We agree with the commentators who have written on the subject …that a stock-as-fees arrangement is subject to Rule of Professional Conduct 1.8(a), which governs certain transactions with or related to clients…. In many respects, Rule 1.8(a) codifies the well-established common law principle that a lawyer occupies a fiduciary position vis-à-vis his client, which means that all transactions between lawyer and client are suspect and must be fair to the client.

However, this specific concern is not present when a lawyer and client agree to arbitrate rather than litigate future fee disputes. So long as a client is fully informed of the extent and scope of such an agreement as required by Com-ment [13], and the client agrees to such a provision before any dispute arises, the selection of an arbitration forum as the setting in which fee disputes will be resolved does not give a lawyer any particular advantage over his or her cli-ent. Rather, it is part and parcel of any ordinary fee agreement.

As an ordinary fee arrangement, the requirements of Rule 1.8(a) do not apply (i.e., the client need not be given a rea-sonable opportunity to seek the advice of independent counsel or give informed consent in writing), and the further obli-gation imposed by Opinion 211, namely, that the client “is in fact counseled by another attorney,” should no longer apply as well. This conclusion is wholly con-

sistent with the Committee’s analysis of the effect of Comment [13] on Opinions 211 and 218.4

Comment [13] makes clear that it is permissible for a lawyer and a client to agree to arbitrate legal malpractice claims provided that the “agreement is valid and enforceable” and the “client is fully informed of the scope and effect of the agreement.” Comment [13] does not require that the client be given the rea-sonable opportunity to seek the advice of independent counsel or that the client give informed consent in writing as is required by Rule 1.8(a), let alone go as far as Opin-ion 211, to require that the client “in fact [be] counseled by another attorney.”

Indeed, the only way to square Com-ment [13] and Comment [1] in the con-text of mandatory arbitration provisions in fee agreements is to conclude that such arbitration agreements are “ordinary” and Rule 1.8(a) does not apply. This result is also appropriate given the Committee’s own recognition, when it relied on Rule 1.8(a) in reaching its conclusion in Opin-ion 211, that a mandatory arbitration pro-vision did not “precisely fit the language of Rule 1.8(a).” This is particularly true in light of the clarifying amendments to Comments [1] and [13] that explain the meaning of the Rule.

C. The Requirement That The Cli-ent Be “Fully Informed”

Comment [13] to Rule 1.8 permits a lawyer and client to agree to arbitrate legal malpractice claims as long as the “client is fully informed of the scope and effect of the agreement.” Although the phrase “fully informed” is not defined elsewhere in the comments to Rule 1.8, the definition of the term “Informed Consent” in Rule 1.0(e) is instructive. “‘Informed Consent’ denotes the agree-ment by a person to a proposed course of conduct after the lawyer has com-municated “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

The definition of “Informed Consent” contains a description of the nature and extent of information that must be pre-sented to a client in order to obtain that

client’s consent to a “proposed course of conduct.” In the Committee’s view, that description ably summarizes the infor-mation that must be shared with a cli-ent in order for that client to be “fully informed.” Indeed, a fully informed client is the prerequisite to obtaining “Informed Consent.” Therefore, Rule 1.0(e), along with Comment [13] to Rule 1.8, should guide a lawyer’s communica-tions to a client regarding a mandatory arbitration provision in a fee agreement. Put another way, in order for a client to be “fully informed” about the “scope and effect” of a mandatory arbitration provision, a lawyer should communicate “adequate information and explanation about the material risks of and reason-ably available alternatives” to entering into a fee agreement that contains such a provision.

For a client to appreciate the “scope and effect” of a mandatory arbitration provision, the lawyer must provide a client with sufficient information about the differences between litigation in the courts and arbitration proceedings. As a general matter, a discussion regarding at least the following differences between the two methods of dispute resolution is prudent: (1) the fees incurred; (2) the available discovery; (3) the right to a jury; and (4) the right to an appeal. As with the application of the informed con-sent standard, the scope of this discussion depends on the level of sophistication of the client.5

Conclusion

Legal Ethics Opinions 211 and 218 are superseded by Comments [1] and [13] to Rule 1.8 and this opinion. Mandatory fee agreements are ordinary fee arrange-ments and are thus not subject to the requirements of Rule 1.8(a). Comment [13] clarifies that mandatory arbitration provisions in fee agreements are permis-sible, provided that the requirements set forth in Comment [13] are met.

Published November 2018

4 While the ethics rules no longer require that the client be advised in writing that the ACAB staff is available to provide counseling, the ACAB staff remains available to advise a lawyer’s client who is contemplating signing a fee agreement with a mandatory provision about fee arbitration, its advantages and disadvantages, as well as its alterna-tives. Lawyers may continue to voluntarily provide information about this resource to a client.

5 In December 2018, the D.C. Bar Board of Governors amended Section 8 of the ACAB Rules of Procedure. Section 8(b)(iii) now provides, “The ACAB will enforce an attorney/client agreement to arbitrate a fee dispute if the agreement: (1) is valid and enforceable, (2) is signed by all parties to the dispute, and (3) encompasses fee disputes in the scope of the disputes to be arbitrated. Further, the client must have been adequately informed of the scope and effect of a mandatory arbitration provision, consistent with D.C. Bar Legal Ethics Committee Opinion 376 (copy attached). In this instance, the ACAB can compel a client to arbitrate a fee dispute filed by a lawyer….”

October 2019 THE DISTRICT OF COLUMBIA BAR 419

Opinion 377

Duties When A Lawyer is Impaired

Introduction

The District of Columbia Legal Ethics Committee has examined the ethical duties of partners; other managerial or supervi-sory lawyers and subordinate lawyers; and non-lawyer employees to take appropriate measures when they reasonably believe another lawyer in the same law firm or government agency is suffering from a significant impairment that poses a risk to clients.1 A related question involves the duties owed to clients and the profession when an impaired lawyer leaves a law firm or government agency, particularly when the lawyer may continue to practice law, regardless of whether clients are, or may be, terminating their relationship with the firm in order to remain clients of the departing lawyer.2

This Opinion deals only with mental impairment, which may be a chronic or temporary condition arising out of or related to age, substance abuse, a physi-cal or mental health condition or other circumstance affecting the lawyer. This Opinion supplements the guidance con-tained in Legal Ethics Opinion 246, with a specific focus on the issue of impaired lawyers, whose conduct may or may not trigger mandatory reporting obligations under the Rules, as discussed herein. This Opinion also relies, in part, upon ABA Committee on Ethics and Professional Responsibility Formal Opinion 03-429 (2003).

The impairment of a lawyer may fluc-tuate over time, regardless of its cause. However, if a lawyer’s periods of impair-ment are on-going or have a likelihood of recurrence, then partners, or other

lawyers with managerial or supervisory authority may have to conclude that the lawyer’s ability to represent clients is materially impaired.

A range of ethics rules are implicated, including those setting forth the duties owed by lawyers to clients and the pro-fession, and those addressing issues of supervising lawyers and non-lawyer employees. At the outset, and as discussed within this opinion, the Committee recog-nizes that there are tensions between ethi-cal duties that arise under the D.C. Rules of Professional Conduct (the “Rules”) and requirements or prohibitions that may exist under the substantive law, specifi-cally with respect to employee privacy and other rights. Lawyers and law firms must be cognizant of the legal landscape in which these difficult issues occur.3

Mental impairment may lead to an inability to competently represent a cli-ent as required by Rule 1.1, to complete tasks in a diligent and zealous manner as required by Rule 1.3, and to communi-cate with clients about their representa-tion as required by Rule 1.4.

Rule 5.1 requires partners or other lawyers with managerial or supervisory authority to make reasonable efforts to ensure that all lawyers and those under their supervision comply with the appli-cable Rules and to ensure that their law firm or government agency has in effect measures giving reasonable assurance that all lawyers in the firm or agency conform to the Rules. These provisions require managerial or supervisory law-yers who reasonably believe or know that a lawyer is impaired to closely supervise the conduct of the impaired lawyer because of the risk of violations of the Rules and resulting harm to clients. Rule 5.2 may also apply to subordinate lawyers if they know of and ratify the conduct of the impaired lawyer.

Rule 8.3 requires a lawyer, regardless of managerial or supervisory authority, to report an impaired lawyer to the appro-priate professional authorities including,

but not limited to, the District of Colum-bia Office of Disciplinary Counsel,4 if the impaired lawyer has committed a vio-lation of the Rules that raises a substan-tial question as to that lawyer’s honesty, trustworthiness or fitness to practice law, unless such disclosure would be prohibit-ed under the duty of confidentiality owed to clients under Rule 1.6 or other law. See Footnote 3. Further, if the firm or gov-ernment agency removes the impaired lawyer from a matter, it may have an obligation under Rule 1.4 to discuss with the client the change in staffing on the matter. The duty to discuss removal of government lawyers from a matter may be different because of government poli-cies or regulations.

If the impaired lawyer resigns, is removed or otherwise leaves the law firm, the firm may have additional disclo-sure obligations under Rule 1.4 to clients who are considering whether to remain with the firm or to transfer their repre-sentation to the departing lawyer. How-ever, the firm should be cautious to limit any disclosures to necessary information permissible to disclose under applicable law. The obligation to report misconduct under Rule 8.3 is not eliminated if the impaired lawyer leaves the firm.

Beyond the ethical obligations embod-ied in the D.C. Rules, a fundamental pur-pose of identifying and addressing lawyer impairment is to encourage individuals who are suffering from mental impairment to seek and obtain assistance and treatment. This purpose should not be forgotten as lawyers, firms and agencies seek to comply with the ethical mandates discussed herein.

Background on Impairment Issues in the Legal Profession:

In 2016, the ABA Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation pub-lished the results of national research on the issue of substance abuse and other mental health concerns among American lawyers. The study reported rates of sub-stance abuse among lawyers that were far higher than those in other professions. The results also showed that the most common barrier for a lawyer seeking help was fear of others finding out and general concerns about confidentiality.

Roughly a quarter of the study par-ticipants identified their substance abuse

1Whether two or more lawyers constitute a “firm” or a “law firm” can depend on specific facts. See Rule 1.0(c). While the Rules exclude govern-ment agencies or other government entities within the definition of “firm” or “law firm,” the Rules do not exempt lawyers practicing in a government agency or other government entity, who are other-wise subject to the District of Columbia Rules of Professional Conduct, from the ethical obligations set forth herein. See, e.g., 28 U.S.C. § 530B.

2An additional question, dealing more broadly with obligations to report a lawyer that is not employed by the same law firm or agency, may be answered by reference to D.C. Legal Ethics Opin-ion 246 (A Lawyer’s Obligation to Report Another Lawyer’s Misconduct) (1994). Lawyers that may be concerned about the impairment of lawyers outside their firm or agency over whom they do not have managerial or supervisory authority may nonetheless find the guidance within this Opinion instructive.

3This Opinion addresses only the ethical obli-gations of lawyers when faced with an impaired lawyer. There may also be legal obligations imposed under the District of Columbia Human Rights Act, the Americans with Disabilities Act, the Family Medical Leave Act, the Health Insur-ance Portability and Accountability Act or other state or federal laws that are beyond the scope of this Committee and this Opinion. There may also be fiduciary or contractual obligations imposed by partnership or employment agreements with an impaired lawyer. Further, as discussed in this Opinion, lawyers employed in government agencies may have obligations imposed by their department or agency with regard to reporting obligations.

4The duty to report is not limited to the District of Columbia Office of Disciplinary Counsel. If the reporting lawyer is aware that the impaired lawyer is also a member of other bars or another profession that is subject to professional regulation, then the duty to report may also extend to reporting to those other entities.

or mental health issues as having first started prior to law school. In August 2017, the National Task Force on Lawyer Well-Being, a commission comprised of lawyers, judges, academics and medical professionals, issued a report, The Path To Lawyer Well-Being: Practice Recom-mendations for Positive Change,5 which addresses issues of substance abuse and impairment and provides recommenda-tions and action plans for lawyers, law firms and other appropriate communities.

Applicable Rules• Rule 1.1 (Compentence)• Rule 1.3 (Diligence and Zeal)• Rule 1.4 (Communication)• Rule 1.6 (Confidentiality of

Information)• Rule 1.16 (Declining or Terminat-

ing Representation)• Rule 5.1 (Responsibilities of Part-

ners, Managers, and Supervisory Law-yers)

• Rule 5.2 (Subordinate Lawyers)• Rule 5.3 (Responsibilities Regard-

ing Nonlawyer Assistants)• Rule 8.3 (Reporting Professional

Midconduct)• Rule 8.4 (Misconduct)

Discussion

This Opinion addresses three potential scenarios that impose obligations under the Rules with respect to a lawyer who is known by other lawyers or staff in the same law firm or government agency to be suffering from an impairment. First, the opinion addresses the obligations of partners and other managerial and supervisory lawyers to take steps to pre-vent an impaired lawyer from violating the Rules, to develop policies address-ing impairment, and to create a firm or agency culture that allows subordinate lawyers and other personnel to report concerns regarding the impairment of a lawyer without reprisal. Second, it addresses the reporting obligations of a lawyer who knows that an impaired lawyer in the same firm or agency has violated the Rules. Third, it addresses the obligations of lawyers when an impaired lawyer leaves a firm.

The Committee agrees with ABA For-mal Opinion 03-429 that, “[i]mpaired law-yers have the same obligations under the [Rules] as other lawyers. Simply stated, mental impairment does not lessen a law-yer’s obligation to provide clients with

competent representation.” Importantly, Rule 1.16(a) prohibits a lawyer from rep-resenting a client or requires a lawyer to withdraw if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the cli-ent.”6 Managerial and supervisory lawyers should be aware that an impaired lawyer may be unaware, or in denial, that the impairment has impacted the lawyer’s ability to represent clients. If the impaired lawyer does not or will not take affirma-tive steps to mitigate the consequences of the impairment, then the lawyer’s part-ners, managers, or supervisors are obligat-ed under Rule 5.1 to take steps to ensure the lawyer’s compliance with the Rules.

A. Duties of partners, managerial lawyers or supervisory lawyers who reasonably believe that another law-yer is or may suffer from significant impairment.

Rule 5.1(a) requires that partners and comparable managerial lawyers in a firm or government agency make reasonable efforts to ensure that the firm or agency has in effect measures giving reasonable assurance that all lawyers conform to the Rules. The Rule also requires partners and managerial lawyers to make reason-able efforts to establish internal proce-dures and policies designed to provide reasonable assurance that all lawyers will conform to the Rules of Professional Conduct. See Rule 5.1, Comments 1 & 2. Similarly, Rule 5.1 requires law-yers having direct supervisory authority over another lawyer to make reasonable efforts to ensure that the other lawyer’s conduct conforms to the Rules of Profes-sional Conduct. See Rule 5.1(b).7

What constitutes a “reasonable” effort or assurance is not defined, because the reasonableness of any measures will depend, in part, on the firm or agen-cy’s size, structure and the nature of its practice. See Rule 5.1, Comment 3. Measures should, however, include pro-cesses ensuring that the firm or agency can identify and address issues of impair-ment among its lawyers. Whether other measures such as a written policy or a reporting procedure are appropriate will depend, in part, on the factors set out in Comment 3. For example, a written policy might be unnecessary for a solo practitioner, although it may be appro-priate for a solo practitioner to instruct or provide resources for office staff on addressing issues of potential impairment in the workplace.

The Committee does not believe that a written policy regarding impairment is required in order to comply with Rule 5.1. As noted above, whether a firm or agency is required under Rule 5.1 to have written policies or procedures to address impairment issues depends largely on the type and size of the firm or agency. However, even if a written policy is rea-sonably determined to be unnecessary, firms and agencies may want to have a written policy to provide consistency in the guidance available to lawyers and other firm or agency personnel. Firms and agencies should strongly consider implementing practices and procedures that encourage and support reporting of concerns or observed impairment to the appropriate firm or agency personnel. Such procedures may include establish-ing a reporting hotline, permitting anony-mous reporting or designating a “neutral” firm or agency lawyer who does not supervise or manage subordinate law-yers or non-lawyer employees to receive reports. Such measures can encourage reporting by removing concerns regard-ing reprisal or retaliation against subordi-nate lawyers and non-lawyer employees. Firm and agency reporting procedures should strike the balance of encouraging reports without mandating reports from these subordinate lawyers and non-law-yer employees, except as may be required by Rule 8.3.

The firm or agency’s ultimate ethical obligation is to protect the interests of its clients.8 To accomplish this task, a firm or agency should consider the follow-ing steps appropriate when dealing with an impaired lawyer: (1) speaking with the impaired lawyer about the perceived

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5https://www.americanbar.org/content/dam/aba/images/abanews/ThePathToLawyerWellBeingRe-portFINAL.pdf

6Rule 1.16(a)(2).

7Supervisory lawyers are “‘lawyers who have supervisory authority over the work of other law-yers [and nonlawyers] in the office’ regardless of their status in the organization. . . . ‘Even if a lawyer is not a partner or other general manager, he or she may have direct supervisory authority over another lawyer. . . .’ The key to responsibility under paragraph (b) is the relationship between the two lawyers in the matter. The supervisory lawyer ‘need not be over the entirety of the second lawyer’s practice. . . [Rule 5.1(b)] would apply to direct supervision in a particular case, or to one partner [or manager] who has been given supervisory authority over another partner [or manager’s] work in a case or practice area.’” ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 14-467 (Sept. 8, 2014) (quoting Ronald d. Rotunda & John S. dzien-kowSki, legal ethicS: the lawyeR’S deSkbook on PRofeSSional ReSPonSibility § 5.1-2(b), at 1009 (2014); geoffRey c. hazaRd, w. william hodeS & PeteR R. JaRviS, the law of lawyeR-ing § 42.3 (3d ed., Supp. 2010); first, third and fourth alterations in the original).

8See Rule 1.3.

October 2019 THE DISTRICT OF COLUMBIA BAR 421

impairment and need for remediation; (2) requiring the impaired lawyer to seek assistance or professional evaluation as a condition of continued employment; or (3) referring the lawyer to the Bar’s confidential Lawyer Assistance Program. It may also be appropriate to provide the lawyer a list of firm-developed referrals or resources for education or assistance/consulting with outside mental-health professionals or other medical profes-sionals. Depending on the circumstances, it may also be appropriate for the firm or government agency to consult with mental-health or medical professionals about the lawyer, prior to engaging in any remedial activities. To the extent such consultation is sought, the firm should ensure that its disclosures regarding the lawyer comply with applicable laws. See Footnote 3.

Firms and agencies should seek to cre-ate a culture of compliance that encour-ages reporting within the organization, including by lawyers and staff who do not have managerial or supervisory responsi-bilities. Although there is no provision in the Rules requiring subordinate lawyers to take steps to ensure that another law-yer’s conduct complies with the Rules, Rule 5.2 requires subordinate lawyers to abide by all Rules, even when acting at the direction of others.9 Subordinate lawyers should be reminded that (1) even when acting at the direction of another, a subordinate lawyer should not take actions that would ratify the misconduct of an impaired lawyer, and (2) if report-ing is mandatory under Rule 8.3, then a subordinate lawyer’s duties may be discharged only by a report to the Office of Disciplinary Counsel, as discussed below. Rule 5.3 imposes upon lawyers an obligation to ensure that non-lawyers employed by or otherwise associated with lawyers engage in conduct that is compatible with the professional obliga-tions of the lawyers.

If a managerial or supervisory law-yer in a law firm or agency receives a report from a lawyer or staff member, the managerial or supervisory lawyer must investigate and, if it appears that the report is meritorious, take appropri-ate measures to ensure that the impaired lawyer’s conduct conforms to the Rules. If the firm or agency declines to take action, then the reporting lawyer should seek guidance as to the lawyer’s profes-

sional responsibilities from the Bar’s Legal Ethics Helpline or from appropri-ate legal ethics advisors within or out-side the lawyer’s organization.

If the firm or agency makes reasonable efforts to ensure compliance with the Rules, as set forth in Rule 5.1, then mana-gerial and supervisory lawyers will not be ethically responsible for the impaired lawyer’s violation of the Rules, unless they knew of the conduct at a time when its consequences could have been avoid-ed or mitigated but failed to take reason-able remedial action. See Rule 5.1(c)(2).

To protect more directly the interests of the client, the firm or agency should consider whether the impaired lawyer has a duty to refrain from practicing or if the lawyer must withdraw from representa-tion under Rule 1.16(a)(2). Depending on the circumstances, the firm or agency may determine that it is appropriate to limit the ability of the impaired law-yer to handle legal matters or to deal with clients. Depending on the nature of the lawyer’s practice, and the effect the impairment has on the lawyer’s abili-ties, it may be appropriate to change the lawyer’s work environment or duties, such as removing the lawyer from trials or negotiations, and assigning tasks such as legal research or drafting. However, if the lawyer is performing any legal tasks, the firm or agency is responsible for supervising the work performed by the lawyer and the work product produced by the lawyer.

Rule 1.4 imposes a requirement that clients be reasonably informed of the status of a matter. Depending on the role that the impaired lawyer played on the legal team, the circumstances surround-ing the removal of an impaired lawyer from the case may be material to the representation and therefore need to be disclosed, in order to allow the client to make informed decisions regarding the representation. Assuming disclosure does not violate substantive law, clients should be informed of sufficient facts about the lawyer’s impairment to permit a reasonable client to decide whether and how to continue the representation and to make a decision about the client’s mat-ter. Comment 2 to Rule 1.4 states that the lawyer “must be particularly care-ful to ensure that decisions of the client are made only after the client has been informed of all relevant considerations. The lawyer must initiate and maintain the consultative and decision-making pro-cess if the client does not do so and must ensure that the ongoing process is thor-ough and complete.” If it is determined

that disclosures are required by Rule 1.4 and permissible under law, then lawyers should be careful to disclose only neces-sary and material information to the cli-ents, balancing truthful disclosures with the impaired lawyer’s privacy or other legal rights. It may not be appropriate, under the substantive law, to disclose any details regarding the nature (or suspected nature) of the impairment because, while it may be material to a client that a lawyer is being removed from the matter, the specific reasons for removal would likely not be material to the client’s ability to make an informed decision with regard to its matter or its continuing relationship with the firm.10

B. Rule 8.3 Obligations to Report Violations of the Rules.

Rule 8.3 imposes a mandatory report-ing obligation, under certain circum-stances, on every lawyer with respect to other lawyers’ violations of the Rules. As set forth in Rule 8.3(a):

A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

However, pursuant to Rule 8.3(c), “this rule does not require disclosure of information otherwise protected by Rule 1.6 or other law.” If reporting requires the disclosure of protected client infor-mation, the report may only be made with the client’s informed consent.

Rule 8.3 does not distinguish among managerial, supervisory or subordinate lawyers with respect to their reporting obligations and requires reporting when there is knowledge that another lawyer has committed a violation of the rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer.11

9Rule 5.2(b) provides that “a subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable ques-tion of professional duty.”

10Nothing in this Opinion should be inter-preted to alter or diminish any obligation to make disclosures otherwise required under the Rules. For example, if the impaired lawyer committed malpractice or violated the standard of care in the representation, such conduct would have to be dis-closed to the client under the Rules. Similarly, vio-lations of the Rules may have to be reported to the Office of Disciplinary Counsel as set forth in Rule 8.3. The disclosure of such conduct, however, does not require the disclosure of the lawyer’s personal information protected under the law.

11The Committee notes that the reporting obliga-tion requires that a lawyer report actual knowledge of a Rule violation implicating the lawyer’s honesty,

422 THE DISTRICT OF COLUMBIA BAR October 2019

In Opinion 246, we adopted the four-part test established by other jurisdictions for determining whether the standard under Rule 8.3 is met. The duty to report is obligatory only if:

(l) the reporting lawyer has actual knowledge of the violation;

(2) reporting can be accomplished with-out disclosure of client confidences or secrets;12

(3) the violation involves a disciplinary rule; and,

(4) the violation raises a substantial question as to honesty, trustworthiness or fitness to practice law.

Government lawyers are advised to review department or agency guidance that may impose additional obligations before disclosing information protected by Rule 1.6, including an obligation to report allegations of misconduct inter-nally for the purpose of reviewing the allegations and determining whether and what information should be disclosed in connection with a referral to the appro-priate disciplinary authorities. See, e.g., Justice Manual §§ 1-4.300, 1-4.340.

If the duty to report is triggered under Rule 8.3, it is mandatory. Reliance on the expectation that another lawyer will make a report is insufficient to discharge duties under Rule 8.3. That said, a firm or agency may make a report on behalf of a lawyer or a group of lawyers who have a reporting obligation. In such instances, a single report submitted on behalf of one or more lawyers with an obligation to report will discharge the reporting obligation of each lawyer. Except as con-strained by Rule 1.6, the lawyer’s duty is to make a report to the appropriate pro-fessional authority. If the impaired law-yer is licensed to practice in the District of Columbia, the report must be made to the Office of Disciplinary Counsel. Even if the firm or agency determines that the

impaired lawyer did not violate the Rules and that, therefore, there is no duty to report under Rule 8.3, or if obligations imposed by Rule 1.6 or other law prohibit reporting, it may still be appropriate to encourage the lawyer to seek the assis-tance of the D.C. Bar Lawyer Assistance Program in an effort to provide assistance and support to the impaired lawyer. In addition, the Lawyer Assistance Program may serve as a resource for law firms, government agencies and lawyers navi-gating an employee’s impairment.

C. What is the duty of a managerial or supervisory lawyer when a lawyer with a significant impairment leaves the law firm?

In addition to any duty to report, mana-gerial or supervisory lawyers may have a duty to any current client of the firm who is represented by the departing lawyer to ensure that the client has sufficient infor-mation to make an informed decision about continuing to be represented by the impaired lawyer.

The Committee believes that the approach adopted by the Philadelphia Bar Association in Philadelphia Bar Association Ethics Opinion 2000-12 is instructive. The Philadelphia Bar sug-gested taking a direct approach with the departing lawyer, urging the departing lawyer not to solicit the firm’s clients or to indicate that the departing lawyer would handle their cases in any kind of substantive way.

However, if the departing impaired lawyer intends to solicit current firm clients to follow the lawyer to a new practice, then Rule 1.4(b) requires a man-agerial or supervisory lawyer to explain the situation to the clients to the extent reasonably necessary to permit the cli-ents to make informed decisions regard-ing the representation, again assuming that the explanation is not prohibited by law. This obligation exists whether or not the firm had taken previous steps to protect the clients, including but not lim-ited to supervising the impaired lawyer or removing the impaired lawyer from the matter and informing the clients of such removal.13 In the end it remains the clients’ decision whether to follow

the departing lawyer to a new practice, to remain with their current firm, or to retain a new firm.

Any communication with firm clients should be carefully worded to convey only demonstrable facts about the law-yer’s departure. Managerial and supervi-sory lawyers should be careful to disclose only necessary and material information to the clients, balancing truthful disclo-sures with the impaired lawyer’s privacy rights under the substantive law. Law firms are advised to consult the substan-tive law regarding what may or may not be said. See Footnote 3. If disclosure of information relating to the circumstances surrounding the lawyer’s departure is prohibited under substantive law, then no such disclosure may be compelled under the Rules. In this regard, the Committee believes that the existence of policies and procedures addressing the handling of issues of impairment within the law firm or government agency are helpful to demonstrating compliance with the Rules.

If a communication intended to request that the clients remain with the law firm will be sent by the law firm, then it should be drafted to avoid mak-ing false or misleading communications about the firm’s services or any misrep-resentations that violate Rule 8.4(c). The law firm should avoid any action that might be interpreted as an endorsement of the impaired lawyer or the lawyer’s competence, such as sending a joint letter regarding the lawyer’s departure from the firm, or other correspondence from the law firm that could be con-sidered an endorsement of the services of the departing attorney. The law firm may, of course, send a letter to its clients encouraging them to remain with the firm, but cannot reasonably prevent the departing lawyer from independently doing the same, provided that such communications are consistent with the departing lawyer’s ethical, legal or con-tractual obligations to the firm.14 To the extent the guidance in this Opinion endorses the use of a separate letter from the law firm to the clients, the Commit-tee notes that the circumstances regard-ing the departure of an impaired lawyer from a law firm are extraordinary and warrant a departure from advice previ-

trustworthiness or fitness to practice law; even if the violating lawyer is not affiliated or employed with the reporting lawyer. Rule 8.4(g) allows for volun-tary reporting of conduct to Disciplinary Counsel, so long as there is no threat to seek criminal charges or disciplinary charges solely to obtain an advantage in a civil matter. A complaint or report filed in good faith cannot be said to have been filed solely for the purpose of gaining an advantage in a civil matter. See D.C. Legal Ethics Opinion 220 (Threats to File Disciplinary Charges) (1991).

12Rule 8.3(c) was amended in 2007 to include a limitation on the duty to report when prohibited by “other law.” Opinion 246 should now be read consistent with that amendment.

13The Committee envisions a possible scenario in which the impaired attorney’s response to being confronted regarding the impairment is to leave the firm to practice elsewhere. In such cases, the firm may not have had the opportunity to remove the impaired lawyer from client matters, to take other protective measures, or to inform clients of the removal of the impaired lawyer from matters. As noted herein, however, the duty to address an issue

of impairment, to communicate material informa-tion to a client or to mitigate harm may first arise long before the lawyer decides to leave the law firm.

14See D.C. Legal Ethics Opinion 273 (Ethical Considerations for Lawyers Moving From One Private Law Firm to Another) (1997).

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ously provided on the issue of departing lawyers.15

If an impaired lawyer leaves a firm and does not take firm clients, or the firm later learns that a former firm client has retained the impaired lawyer, then the law firm has no duty to supply those cli-ents with facts about the impaired lawyer, as long as the firm avoids any action that might be interpreted as an endorsement of the services of the impaired lawyer or the lawyer’s competence.

Conclusion

In circumstances where a law firm or government agency addresses the issue of an impaired lawyer, there is a crucial bal-ancing between protecting the interests of the clients and properly discharging the law firm or government agency’s obliga-tions to protect the privacy of the lawyer under substantive law. Having appropri-ate policies and procedures designed to encourage reporting and to address issues of impairment within the law firm or government agency are important steps in ensuring that an impaired lawyer does not violate the Rules and that partners, and managerial and supervisory lawyers properly discharge their duties under the Rules.

Published October 2019

Opinion 378

Acceptance of Cryptocurrency as Payment for Legal Fees

It is not unethical for a lawyer to accept cryptocurrency in lieu of more traditional forms of payment, so long as the fee is reasonable. A lawyer who accepts cryptocurrency as an advance fee on services yet to be rendered, how-ever, must ensure that the fee arrange-ment is reasonable, objectively fair to the client, and has been agreed to only after the client has been informed in writing of its implications and given the opportunity to seek independent coun-sel. Additionally, a lawyer who takes possession of a client’s cryptocurrency, either as an advance fee or in settlement of a client’s claims, must also take com-petent and reasonable security precau-tions to safeguard that property.

Applicable Rules• Rule 1.1 (Compentence)• Rule 1.5 (Fees)• Rule 1.8 (Conflice of Interest:

Specific Rules)• Rule 1.15 (Safekeeping Property)

Background

Cryptocurrency is a virtual asset—dig-ital money—that exists only in electron-ic form. It is completely decentralized, meaning there is no controlling authority, and it is not issued by any government or backed by any tangible security or real estate. Instead, cryptography (mathemati-cal algorithms that are used to encode and decode information) controls the creation of new “coins” of a particular cryptocur-rency and secures and records transac-tions. The resulting data is maintained in a virtual transaction ledger called a “blockchain,” which is distributed to every computer on that cryptocurrency’s network. The blockchain is a continually-expanding chronological record of trans-actions; it is comprised of “blocks” of information that include the source of cryptocurrency being transacted, its des-tination, and a date/time stamp. The most well-known cryptocurrencies are Bitcoin and Ethereum, but there are thousands of others.

Cryptocurrency, once acquired, may be spent like currency or held as an invest-ment asset, like gold. Its algorithmic existence is “stored” in digital “wallets” maintained by online platforms (“hot wallets”) or offline on a computer’s hard drive, a USB port, or even paper (“cold wallets”). A cryptocurrency wallet also stores private and public keys, which are strings of alphanumeric characters that enable their holder to receive or spend cryptocurrency. The public key is shared to allow others to send currency to a wal-let. The private key allows its holder to access her wallet by writing in the public ledger, effectively spending the associ-ated cryptocurrency.

The U.S. Internal Revenue Service (IRS) describes “virtual currency,” i.e., cryptocurrency, as “a digital representa-tion of value that functions as a medium of exchange, a unit of account, and/or a store of value.”1 Based on this definition, the IRS treats cryptocurrency as property rather than currency for U.S. federal tax purposes. And, despite having no physi-cal existence and being “spendable” like money, cryptocurrency does seem similar

to a commodity such as gold in that its exchange value is tied directly to market demand. But cryptocurrency as an asset is far more volatile than gold—one Bit-coin, for example, was worth $5,647.53 on September 19, 2017; $17,056.55 on December 11, 2017; $7,826.99 on Febru-ary 5, 2018; $3,295.27 on December 10, 2018; and $10,241.35 on September 9, 2019.2

The nature of digital currency- as a new technology, a volatile alternative currency or asset, or client property- raises ethical challenges for lawyers that simply do not exist with fiat currency. But lawyers cannot hold back the tides of change even if they would like to, and cryptocurrency is increasingly accepted as a payment method by vendors and service providers, including lawyers.3 Accordingly, the Committee provides this Opinion to assist lawyers who accept or even require payment of fees or settle-ment in cryptocurrency (or whose clients do) to meet their ethical obligations.

1. Reasonableness of the Fee Arrangement

Rule 1.5(a) states that “[a] lawyer’s fee shall be reasonable.” The rule includes a list of factors to be considered in determining the reasonableness of a fee, most of which concern the nature of the representation, the attorney’s level of experience, and the client’s needs and sophistication. Only two enumerated factors explicitly mention fees: whether the lawyer’s fees are consistent with the customary rates charged in that locality for similar services,4 and whether a fee is fixed or contingent.5

Rule 1.5(a) does not address terms of payment, and there is nothing in the “reasonableness” standard that prohibits

15See D.C. Legal Ethics Opinion 372 (Ethical Considerations in Law Firm Dissolutions) (2017) citing ABA Comm. on Ethics & Prof’l Responsibil-ity, Formal Op. 99-414 (1999).

1 I.R.S. Notice 2014-21, I.R.B. 2014-16 (Apr. 14, 2014).

2 Cryptocurrency’s volatility is related to many factors, including the relatively limited adoption of digital currency, small market size, risk of security breaches, and lack of regulatory oversight and insti-tutional investment. See https://www.blackwell-global.com/why-are-cryptocurrencies-so-volatile/ (last visited November 12, 2019).

3 According to a November 2019 article, Quinn Emanuel Urquhart & Sullivan, Perkins Coie, Step-toe & Johnson LLP, Frost Brown Todd, and “a slew of smaller firms as well as solo practitioners have embraced the payment structure” of crypto-currencies. Samantha Stokes, Quinn Emanuel Says Clients Can Pay In Bitcoin, available at https://www.law.com/americanlawyer/2019/11/05/quinn-emanuel-says-clients-can-pay-in-bitcoin/?slreturn=20200016135954.

4 Rule 1.5(a)(3).

5 Rule 1.5(a)(8).

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lawyers from accepting potentially vola-tile assets as payment for fees; indeed, Comment 4 to Rule 1.5 states that “[a] lawyer may accept property . . . such as an ownership interest in an enterprise,” as payment. Moreover, this Commit-tee has previously acknowledged that a lawyer may accept an ownership interest in a client, including shares of corporate stock, as an advance payment on services to be rendered. See D.C. Bar Legal Ethics Opinion 300 (July 2000).6

Opinion 300 is particularly helpful in framing the reasonableness analysis applicable to digital currency. In that opinion, the Committee addressed the question of whether a lawyer could serve as part-time general counsel to a limited liability company in exchange for a 20% interest in the company and a share of future profits. We noted that “the perti-nent question” was not “whether such a fee arrangement is ethical in principle; it clearly is. Rather, the question is whether a particular ownership-in-lieu-of-fees arrangement is ‘reasonable,’ which calls for an analysis of reasonableness factors similar to that we have described in prior opinions.” Id. (emphasis added). We emphasized that a lawyer’s disclosures and explanation of the risk of paying advance fees in stock would be particu-larly relevant, as we “had no doubt that reasonableness would be measured, at least in part, by the extent to which the client’s acceptance of the fee arrange-ment was informed by its understanding of [the] financial implications.” Id.

We conclude that payment of fees in cryptocurrency is more akin to payment in property than payment in fiat currency. The financial implications of paying for a lawyer’s services in a cryptocurrency will vary depending on the fee arrange-ment. A client who receives a bill for ser-vices rendered and elects to immediately transfer bitcoins to an attorney’s wallet can be certain of the value of the pay-ment, while a client who pays a lawyer an advance for services to be performed cannot predict the value of that crypto-currency in a week, much less a month or a year. Therefore, the reasonableness of a fee agreement involving cryptocur-rency will depend not only on the terms

of the fee agreement itself and whether or not payment is for services rendered or in advance, but also on whether and how well the lawyer explains the nature of a client’s particularized financial risks, in light of both the agreed fee structure and the inherent volatility of cryptocurrency.

2. Acceptance of Cryptocurrency Under Rule 1.8(a)

We agree with the conclusion of the New York City Bar Association’s Committee on Professional and Judicial Ethics that an agreement to accept an advance retainer in cryptocurrency, or an agreement requiring a client to pay future earned fees in cryptocurrency, is subject to Rule of Professional Conduct 1.8(a) governing business transactions with clients.7

The D.C. rule, like the New York rule, reflects the fiduciary nature of the lawyer-client relationship.8 It requires lawyers to ensure that all business deal-ings with clients are fundamentally fair, providing that:

(a) A lawyer shall not enter into a busi-ness transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuni-ary interest adverse to a client unless: (1) The transaction and terms on which the lawyer acquires the inter-est are fair and reasonable to the client and are fully disclosed and transmitted in writing to the cli-ent in a manner which can be rea-sonably understood by the client; (2) The client is given a reason-able opportunity to seek the advice of independent coun-sel in the transaction; and (3) The client consents in writing thereto.

Like the New York City Bar, we do not believe Rule 1.8(a) is implicated when a client opts to pay attorney’s fees in cryp-tocurrency after receiving a bill, calcu-lated in dollars, for fees already earned and costs incurred. An attorney may agree to accept the corresponding amount of cryptocurrency as a matter of client convenience without taking any special precautions beyond what is required by Rule 1.5 because this is a straightforward

exchange involving no additional vari-ables or special knowledge.

If, however, a lawyer and client agree that the client will provide cryptocurren-cy to be held by the lawyer as an advance fee against services to be performed, or if the lawyer’s fees will be calculated in cryptocurrency (e.g., the client agrees to pay one Bitcoin per month), then the lawyer and client are entering into a potentially adverse pecuniary relation-ship under Rule 1.8. This is because any such agreement necessarily involves considerable uncertainty about the future value of the cryptocurrency at the time the fee will be earned or, in the case of settlement, at the time the payments to third parties and the client will be made.

Rule 1.8(a), like Rule 1.5(a), requires a lawyer to adequately disclose the terms and implications of the fee arrangement, which must be reasonable. But Rule 1.8(a) goes significantly further: a lawyer who enters into a business relationship with a client must provide to the client written disclosure of the terms of the agreement and a reasonable opportu-nity to confer with independent counsel, and must obtain from the client written, informed consent to the agreement. Addi-tionally, Rule 1.8(a) adds an independent ethical obligation to ensure that the fee arrangement is not only reasonable, but also “fair” to the client.

But at what point in the engagement is fairness to be determined? This question is particularly important when assessing the fairness of an agreement to accept and hold a volatile asset like cryptocur-rency—or stocks, or future profits, or foreign currency—as advance fees for services not yet rendered. Once again, Opinion 300, concerning accepting stocks or partial ownership of a client in lieu of fees, is instructive:

Rule 1.8(a) and the commentary thereto are silent on how fairness is to be deter-mined, and whether it is to be deter-mined only by reference to facts and circumstances existing at the time the arrangement is accepted by the parties, or by reference to subsequent develop-ments (for example, a huge appreciation in the value of the shares received as fees such that the lawyer is effectively compensated at 100-fold the reasonable value of his services). For ethics pur-poses (and not for purposes of assess-ing common law fiduciary duties), we believe that the “fairness” of the fee arrangement should be judged at the time of the engagement. In other words, if the fee arrangement is “fair and rea-sonable to the client” at the time of the

6 Indeed, Bar Associations across the country have long agreed that a lawyer may accept fees in stock or equity interest in a client so long as the lawyer ensures that the client fully understands the financial implications and the terms are objectively fair to the client. See ABA Op. 00-418 (July 7, 2000), “Acquiring Ownership in a Client in Con-nection with Performing Legal Services”); N.Y.C. Eth. Op. 2000-3.

7 N.Y.C. Eth. Op. 2019-5.

8 “Because a lawyer occupies a multifaceted position of trust with regard to the client . . . there is an ever present fiduciary responsibility that arches over every aspect of the lawyer-client relationship, including fees. Connelly v. Swick & Shapiro, P.C., 749 A.2d 1264, 1268 (D.C. 2000) (internal citations omitted).

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engagement, no ethical violation could occur if subsequent events, beyond the control of the lawyer, caused the fee to appear unfair or unreasonable.

Opinion 300 at fn 5; see also Restate-ment (Third) of the Law Governing Law-yers § 126, comment e (2000) (“Fairness is determined based on facts that rea-sonably could be known at the time of the transaction, not as the facts later develop.”)

Applying these principles, any fee arrangement that calculates fees in cryp-tocurrency, or that allows or requires a client to either provide an advance fee or accept a settlement payment from a third party in cryptocurrency, should be assessed for fairness at the time that it is agreed upon, based on the facts then available. For so long as the value of digi-tal currency remains predictably volatile, this is a fact the lawyer must ensure that his or her client understands.

The information that must be dis-closed to a particular client in writing under Rule 1.8(a) will, of course, vary. As a general matter, in addition to terms concerning billing rates and frequency, a lawyer accepting cryptocurrency should consider including a clear explanation of how the client will be billed (i.e. in dollars or cryptocurrency); whether and how frequently cryptocurrency held by the lawyer will be calculated in dol-lars, or otherwise trued-up or adjusted for accounting purposes and whether, upon that accounting, market increases and decreases in the value of the cryp-tocurrency triggers obligations by either party; whether the lawyer or the client will be responsible for cryptocurrency transfer fees (if any); which cryptocur-rency exchange platform will be utilized to determine the value of cryptocurrency upon receipt and, in the case of advance fees, as the representation proceeds (i.e., as fees are earned) and upon its termi-nation; and who will be responsible if cryptocurrency accepted by the lawyer in settlement of the client’s claims loses value and cannot satisfy third party liens.9

3. Competently Safeguarding Cryp-tocurrency

Rule 1.15(a) requires, among other things, that a lawyer “appropriately safeguard” the property of clients and third parties.10 Paragraph (e) addresses advance fees, and provides that “advanc-es of unearned fees and unincurred costs shall be treated as property of the client pursuant to paragraph (a) until earned or incurred unless the client gives informed consent to a different arrangement,” and, that, even if the client does consent to a different arrangement,11 any unearned or unincurred portion of an advance fee must be returned upon termination of the lawyer’s services. See also Rule 1.16(d).12 These rules, of course, apply to all advance fees, regardless of how they are funded. But, as with issues related to valuation, safeguarding cryptocurrency raises unique challenges.

The first rule of professional conduct is that lawyers must provide competent rep-resentation to their clients. See Rule 1.1. Although the Comments to Rule 1.1 do not specifically reference technology, we agree with ABA Comment [8] to Model Rule 1.1 that, to be competent, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant tech-nology.” Consistent with D.C. Bar Legal Ethics Opinion 371, which addressed lawyers’ use of social media, a lawyer must have the skill required to exercise reasonable professional judgment regard-ing the use of technology, including digital currency, within the lawyer’s legal practice.

In the case of cryptocurrency, compe-tence requires lawyers to understand and safeguard against the many ways crypto-currency can be stolen or lost. Because blockchain transactions are unregulated, uninsured, anonymous, and irreversible, cryptocurrency is regularly targeted for

digital fraud and theft. For example, cryp-tocurrency online wallets and exchange platforms may be fraudulent; legitimate wallets and platforms may be subject to security breaches; and private keys used to transfer cryptocurrency out of a per-son’s wallet are vulnerable to network-based threats like hacking and malware if stored in a hot wallet (a device or system connected to the internet). Additionally, private keys that are stored in a cold wal-let (hardware, offline software, or paper) can be irretrievably lost, in which case the associated digital currency is likely permanently inaccessible. Just as with fiat currency or any client property, a lawyer must use reasonable care to mini-mize the risk of loss.

Conclusion

We do not perceive any basis in the Rules of Professional Conduct for treat-ing cryptocurrency as a uniquely unethi-cal form of payment. Cryptocurrency is, ultimately, simply a relatively new means of transferring economic value, and the Rules are flexible enough to provide for the protection of clients’ interests and property without rejecting advances in technologies. So long as the fee agree-ment between a lawyer and her client is objectively fair and reasonable (and oth-erwise complies with Rules 1.5 and 1.8), and the lawyer possesses the requisite knowledge to competently safeguard the client’s digital currency, there is no pro-hibition against a lawyer accepting cryp-tocurrency from or on behalf of a client.

Published June 2020

Opinion 379

Attorneys’ Charging Liens and Client Confidentiality

An attorney whose fees are secured by a charging lien against the client’s future recovery in a matter may give notice of the existence of the charging lien to suc-cessor counsel or another likely holder of the property subject to the lien if the attorney’s representation in the matter is terminated before there is a recov-ery. Absent the former client’s consent, however, the notice must not contain information about the client’s lack of resources, the client’s past refusals to pay, or any other information gained in the professional relationship that would be embarrassing, or likely to be detri-mental, to the client. Any further efforts to enforce the lien or collect the fees must

9 The lawyer bears the burden of proving that the transaction was fair and the client was adequately informed, and ambiguities will be construed in favor of the client. See, e.g. In re Martin, 67 A.3d 1032, 1041 (D.C. 2013) (“[A]ny ambiguity in the [contingent fee] agreement would be interpreted against Martin, who drafted the agreement. See Capital City Mortg. Corp. v. Habana Vill. Art & Folklore, Inc., 747 A.2d 564, 567 (D.C. 2000) (stat-ing that ambiguities in contracts will be ‘construed strongly against the drafter.’ ”)); ABA Opinion 00-418.

10 Rule 1.15(a) also requires that lawyers main-tain trust funds to hold money belonging to clients or third parties. Because cryptocurrency has been designated by the IRS as property rather than money, and because it cannot be deposited into a trust fund without being converted to money, this requirement is not applicable.

11 Any “different arrangement” must be fair to the client. “At a minimum, a lawyer must explain to the client ‘the basis for this arrangement and . . . how [the client’s] rights are protected by the arrangement.’” In re Mance, 980 A.2d 1196, 1207 (D.C. App. 2009), as amended (Oct. 29, 2009) (quoting In re Sather, 3 P.3d 403, 410 (Colo. 2000) (en banc)).

12 See also In re Mance, id. at 1202.

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comply with the Rules of Professional Conduct governing fee disputes between lawyers and clients. Disclosures of cli-ent confidences can be made only to the minimum extent necessary to collect the fees, and even then protective orders and filings in camera or under seal should be used to the maximum extent possible to protect client confidential information from exposure to third parties without a need to know.

Applicable Rules• Rule 1.5 (Fees)• Rule 1.6 (Confidentiality of

Information)• Rule 1.8(i) (Lawyer Liens)• Rule 1.15 (Safekeeping Property)• Rule 1.16 (Declining or

Terminating Representation)

Discussion

Historically, an attorney’s toolkit to collect fees included two different kinds of liens: (1) a “retaining lien” against cli-ent files and other client property in the lawyer’s possession, and (2) a “charging lien” against the proceeds of a claim that the lawyer pursued on the client’s behalf when the lawyer and the client “contract-ed with the understanding that the attor-ney’s charges were to be paid out of the judgment recovered.” See generally Wolf v. Sherman, 682 A.2d 194, 197 (D.C. 1996). “A charging lien does not depend upon an agreement that the attorney shall have a lien upon the judgment; in fact, only in the absence (or inadequacy) of an express lien does the question of a possible equitable lien arise.” Id. at 198. As discussed below, an attorney’s ability to use a retaining lien was substantially circumscribed by the adoption of the District of Columbia Rules of Profes-sional Conduct in 1991. However, no specific changes were made with respect to charging liens. The question presented to the Committee here is whether a dis-charged lawyer’s confidentiality obliga-tion to the former client under Rule 1.6 precludes the lawyer giving notice of the lien to the former client’s successor counsel or another likely custodian of the funds or property subject to the lien. The answer is no.

A. Retaining Liens

Where authorized, a retaining lien empowers a terminated attorney to hold hostage the client’s file and other prop-erty in the lawyer’s possession until the bill is paid or, in some jurisdictions, until a court orders release of the file. Such an

order may be conditioned on the client posting a bond to secure the terminated attorney’s fee claim, or by imposing a charging lien on the eventual proceeds of the case. See, e.g., Security Credit Sys-tems, Inc. v. Perfetto, 662 N.Y.S.2d 674 (N.Y. App. Div. 1997) (discussing New York practice).

The greater the client’s need for the file, the more effective the retaining lien is in motivating the client to pay quickly. In order to prevent harm to the client, however, some jurisdictions limit or eliminate the ability of attorneys to use retaining liens in the circumstances where the lien would be most effective.

The District of Columbia is such a jurisdiction. Since 1991, when the Rules of Professional Conduct replaced the ear-lier Code of Professional Responsibility, two of the then-new rules have circum-scribed the ability to enforce a retaining lien. Under Rule 1.8(i):

A lawyer may acquire and enforce a lien granted by law to secure the lawyer’s fees or expenses, but a lawyer shall not impose a lien upon any part of a client’s files, except upon the lawyer’s own work product, and then only to the extent that the work product has not been paid for. This work product exception shall not apply when the cli-ent has become unable to pay, or when withholding the lawyer’s work product would present a significant risk to the client of irreparable harm.

Under Rule 1.16(d):

In connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled. . . . The lawyer may retain papers relating to the client to the extent permitted by Rule 1.8(i).

As discussed in Legal Ethics Opinion 230, file materials that are not “work product” are not subject to any retaining lien. We concluded in that opinion that the inquiring attorney in that matter could not retain the originals of promissory notes and a letter of credit.

While the first sentence of Rule 1.8(i) holds out the possibility of a retaining lien as to the lawyer’s own work prod-uct to the extent that the client has not paid for it, the second sentence takes that option away if the client is “unable to pay” or when withholding the work product “would present a significant risk to the client of irreparable harm.” Rule

1.8(i). As a practical matter, this takes the assertion of a retaining lien off the table in situations where such a lien would be the most powerful.

This was a substantial change from practice prior to 1991 under the Code of Professional Responsibility. As several of our earlier opinions illustrate, the for-mer Code was much more permissive of the use of retaining liens, although there were some limits. See generally D.C. Legal Ethics Opinions 59, 90, 103 & 107.

B. Charging Liens

Charging liens exist under common law in some jurisdictions and by statute in others. Case law in New York memo-rably describes that state’s charging lien as “a device to protect counsel against ‘the knavery of his client,’ whereby through his effort, the attorney acquires an interest in the client’s cause of action.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 177 (2d Cir. 2001) (quoting In re City of New York, 157 N.E.2d 587, 590 (N.Y. 1959)). “The lien is predicated on the idea that the attorney has by his skill and effort obtained the judgment, and hence ‘should have a lien thereon for his compensation, in analogy to the lien which a mechanic has upon any article which he manufactures.’” Id. (quoting Williams v. Ingersoll, 89 N.Y. 508, 517 (1882)).

The charging lien in the District of Columbia is a creature of local common law:

At common law an attorney had what is known as a charging lien on the judg-ment or decree obtained for his client for services rendered in procuring it to the extent of his taxable costs and expenses. In many of the United States an attorney’s charging lien is created by statute, and is, of course, limited by its terms. In some of the states in which there is no statute the attorney’s lien has been extended by court decision to cover reasonable compensation for his services, and in those jurisdictions it is held that such lien may be enforced by resort to equity.

In the District of Columbia there is no statute, but the rule on the subject has been stated to be that it is an indispens-able condition to the establishment of an attorney’s lien on a particular fund — not in possession — that there should be a distinct appropriation of the fund by the client, or an agreement that the attorney should be paid out of it. This rule is now the established law in this jurisdiction.

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Pink v. Farrington, 92 F.2d 465, 466 (D.C. Cir. 1937). Accord Wolf v. Sher-man, 682 A.2d at 197 (“The District’s rule on charging liens is narrower than the English common law rule.”).

The lien may be asserted by giving notice to successor counsel or to others who are likely to have control of the encumbered property before it is distrib-uted to the client. In D.C. Redevelopment Land Agency v. Dowdey, for example, prior counsel successfully enforced a charging lien against a government agen-cy that condemned property that the lawyer had saved from foreclosure. 618 A.2d 153 (D.C. 1992). The original landowner in that case had retained the attorney to delay foreclosure until the property was condemned. The attorney’s fee agreement entitled him to one-third of the property’s equity value, e.g., the proceeds of the eventual condemnation to the landowner. Despite having had notice of the attorney’s charging lien, the condemning authority paid the prior landowner without joining the attorney to the litigation that was intended to adjudi-cate entitlement to those proceeds. The court held that the condemning authority bore the risk of having to make a double payment in those circumstances under condemnation law. See id. at 162.1

C. Attorneys’ Fee Issues When A Client Changes Counsel in the Middle of a Contingent Fee Representation.

“A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services.” Rule 1.16 cmt. [4]. However, “where a [terminated] lawyer has a valid lien covering undis-puted amounts of property or money, the lawyer may continue to hold such

property or money to the extent permitted by the substantive law governing the lien asserted.” Rule 1.16 cmt. [11] (citing Rules 1.8 and 1.15(b)).

In contingent fee representations, a lawyer who is discharged without cause is generally entitled to a fee if the cli-ent ultimately prevails in the underlying matter. In the District of Columbia, the amount of that fee depends on how much work the lawyer did before being dis-charged. If the discharged attorney “had substantially performed” and was “at all times ready, able and willing to complete what remained to be done,” “the attorney is entitled to the full amount of his fee” if the client subsequently recovers. Kaushi-va v. Hutter, 454 A.2d 1373, 1375 (D.C. 1983) (citations omitted) However, “[w]here an attorney, before discharge, has performed only inconsequential services of little benefit to the client, even if these services were all that could have been expected of him, he may recover only in quantum meruit.” In re Waller, 524 A.2d 748, 750 (D.C. 1987) (citing Friedman v. Harris, 81 U.S.App.D.C. 317, 318, 158 F.2d 187, 188 (1946) (attorney who had merely filed suit entitled only to quantum meruit)).2

The client’s potential liability to pre-decessor counsel for any recovery in a contingent fee case is so well under-stood that successor counsel may have an affirmative obligation to warn the client about it in their initial negotiations about successor counsel’s fee. Such was the conclusion of the American Bar Asso-ciation’s Standing Committee on Ethics and Professional Responsibility in ABA Formal Opinion 487 (2019).

The ABA’s conclusion focused on the requirements of Model Rules 1.5(b) and (c). Under the former, “the basis or rate of the fee and expenses for which the cli-ent will be responsible shall be communi-cated to the client, preferably in writing, before or within a reasonable time after commencing the representation.” The lat-

ter authorizes contingent fees where not prohibited but requires contingent fee agreements to be in a writing “signed by the client” and to disclose a number of things, including “the method by which the fee is to be determined,” “litigation and other expenses to be deducted from the recovery,” “whether such expenses are to be deducted before or after the continent fee is calculated,” percentag-es accruing to the lawyer in the event of settlement, trial or appeal, and “any expenses for which the client will be liable” even if not the prevailing party.

The ABA committee concluded that “[a] contingent fee agreement that fails to mention that some portion of the fee may be due to or claimed by the first counsel . . . is inconsistent with the requirements of Rule 1.5(b) and (c).” ABA Formal Opinion 487, at 2. The ABA highlighted the concern if this were to occur with the following illustration:

Assume, for example, that a client retains a lawyer in a matter and enters into a written fee agreement in which the lawyer is entitled to one-third of any recovery. The client then decides to terminate the lawyer, without cause, and hires new counsel. The successor counsel takes the matter on the same terms as the predecessor counsel (one-third of any recovery) but the successor counsel’s written fee agreement is silent on whether that one-third is in addition to or in lieu of the one-third specified in the predecessor counsel’s fee agree-ment, and no such disclosure is made in a separate document provided to the client. In these circumstances, the cli-ent may not know whether the client must pay one or both lawyers or the amount of the fees owed. The client may be aware of the right to terminate a lawyer’s representation at any time but may not be aware that termination does not necessarily extinguish an obligation to pay prior counsel for the value of the work performed – the quantum meruit claim – or in some cases a termination amount specified in the predecessor counsel’s fee agreement. If the prede-cessor counsel was not terminated for cause, that lawyer may be entitled to payment for the fair value contributed to the case before being terminated. Under those circumstances, “a contingency cli-ent should be advised by the successor attorney of the existence and effect of the discharged attorney’s claim for fees on the occurrence of the contingency as part of the terms and conditions of the employment by the successor attorney.”

ABA Formal Opinion 487 at 3 (footnotes omitted).

1In some jurisdictions, charging liens are avail-able in non-contingent fee matters in which the attorney is to be paid on an hourly basis without regard to whether the litigation is successful. See generally John C. Martin, Attorney Charging Liens: A Primer (2016), available at https://www.sfgh.com/siteFiles/News/Attorney%20Charging%20Liens.pdf. That appears not to be the case in the District of Columbia given the requirement of an express or implicit agreement with the client that the attorney is to be paid from the proceeds of the representation. Accordingly, the rest of this opinion will focus on contingent fee representations. We note, however, that the availability of a common law charging lien is irrelevant and unnecessary if the attorney’s agreement with the client gives the attorney an express lien on any proceeds of the rep-resentation as security for the attorney’s fee claim. See Wolf v. Sherman, 682 A.2d at 198 & 200-201. The existence and elements of a charging lien claim are, of course, questions of law beyond the purview of this Committee.

2However, “[a] client has the ultimate authority to control his affairs; thus, he may settle a claim regardless of his attorney’s efforts to prosecute it.” King & King, Chartered v. Harbert Int’l, Inc., 503 F.3d 153, 156 (D.C. Cir. 2007) (citing Barnes v. Quigley, 49 A.2d 467, 468 (D.C. 1946)). Simi-larly, there can be no quantum meruit compensa-tion when the client chooses to discontinue a case because of his reasonable assessment that there is no chance of recovery. Id. at 157. “Otherwise, a contingent-fee client, convinced he had no chance of success, would have to continue his case just to avoid quantum meruit liability. Such a policy would encourage litigants to take unwarranted risks and prolong litigation simply to avoid paying attorney fees—a predicament that mocks the ideal of client control.” Id.

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D.C. Rules 1.5(b)3 and (c)4 differ in some respects from their counterparts in the Model Rules. On this issue, however, we believe that our Rule 1.5 also requires successor counsel in a contingent fee matter to alert the client that prior counsel may have a claim to a fee from any eventual recovery. Absent such disclosure, many clients would not fully understand the basis or rate of the fees for which they might ultimately be liable.

The ABA opinion also discussed cer-tain obligations that successor counsel would have to prior counsel under the “Safekeeping Property” obligations of Rule 1.15:

Where a disagreement persists between the predecessor counsel and the client, or predecessor counsel and successor counsel, about the amount of the prede-cessor counsel’s fees from the proceeds obtained by the successor counsel, the successor counsel must comply with Rule 1.15 and substantive law in notify-ing predecessor counsel of the receipt of the funds and in deciding how to handle the funds. . . . If there is a dispute as to whether some or all of those funds should be paid to the predecessor coun-sel by the client but there is a claim to the proceeds by that counsel, the succes-sor counsel must hold the disputed por-tion of the funds in a client trust account pursuant to Rule 1.15(e).

ABA Formal Opinion 487 at 6-7.D.C. Rule 1.15 imposes similar obliga-

tions to the extent that successor counsel is aware of prior counsel’s claim against funds recovered for the client:

(a) A lawyer shall hold property of

clients or third persons that is in the lawyer’s possession in connection with a representation separate from the law-yer’s own property. Funds of clients or third persons that are in the lawyer’s possession (trust funds) shall be kept in one or more trust accounts main-tained in accordance with paragraph (b). Other property shall be identified as such and appropriately safeguard-ed. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

* * *

(c) Upon receiving funds or other prop-erty in which a client or third person has an interest, a lawyer shall promptly noti-fy the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property, subject to Rule 1.6.

(d) When in the course of representa-tion a lawyer is in possession of prop-erty in which interests are claimed by the lawyer and another person, or by two or more persons to each of whom the lawyer may have an obligation, the property shall be kept separate by the lawyer until there is an accounting and severance of interests in the prop-erty. If a dispute arises concerning the respective interests among persons claiming an interest in such property, the undisputed portion shall be distrib-uted and the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. Any funds in dispute shall be deposited in a separate account meeting the requirements of paragraph (a) and (b).

In Legal Ethics Opinion 293, we pro-vided guidance on the disposition of the property of clients and others where ownership of that property is in dispute. We concluded:

In certain situations, a lawyer is obli-gated to safeguard funds that come into the lawyer’s possession where owner-ship interests are claimed by both the lawyer’s client and a third party or par-ties. If the third party has a “just claim” to the property that the lawyer has a duty under applicable law to protect against wrongful interference by the lawyer’s client, the lawyer must hold any dis-

puted portion of the property until the dispute has been resolved.5

Legal Ethics Opinion 293.We gave extensive guidance on what

would and would not be a “just claim” that the lawyer needed to respect in con-sidering distributions of funds:

In general, a “just claim” that the lawyer must honor pursuant to Rule 1.15 is one that relates to the particular funds in the lawyer’s possession, as opposed to merely being (or alleged to be) a gen-eral unsecured obligation of the client. The problems addressed by this opinion most commonly arise in the context of the disbursement of settlement funds or proceeds of a transaction, such as the sale of real estate. In those cases, sev-eral types of claims that frequently are received by lawyers are illustrative of “just claims” that would require the law-yer to give notice, make disbursement promptly where there is no dispute, and safeguard the funds in the event of a dispute until the dispute is resolved. These are:

1. an attachment or garnishment arising out of a money judgment against the cli-ent (or ordered judicially prior to judg-ment) and duly served upon the lawyer, regardless of whether the attachment or garnishment is related to the matter being handled by the lawyer…;

2. a statutory lien that applies to the proceeds of the suit being handled by the lawyer…;

3. a court order relating to the specific funds in the lawyer’s possession…; and

4. a contractual agreement made by the client and joined in or ratified by the lawyer to pay certain funds in the possession of the lawyer (e.g., client expenses in consideration of the sup-plier’s agreement to forebear collec-tion action during the pendency of the lawsuit) to a third party, regardless of whether such an agreement arises

3 “When the lawyer has not regularly represent-ed the client, the basis or rate of the fee, the scope of the lawyer’s representation, and the expenses for which the client will be responsible shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.”

4 “A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohib-ited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal, litigation, other expenses to be deducted from the recovery, whether such expenses are to be deducted before or after the contingent fee is calculated, and whether the client will be liable for expenses regardless of the outcome of the matter. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written state-ment stating the outcome of the matter, and if there is a recovery, showing the remittance to the client and the method of its determination.”

5The source of the phrase “just claim” is Com-ment [8] to Rule 1.15:

Third parties, such as a client’s credi-tors, may have just claims against funds or other property in a lawyer’s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accord-ingly may refuse to surrender the property to the client. However, a lawyer shall not unilaterally assume to arbitrate a dispute between a client and the third party.

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from the matter being handled by the lawyer….

Legal Ethics Opinion 293 (citations omit-ted).

“Where such a ‘just claim’ exists, the lawyer is ethically obliged to disregard her client’s demand for the property. Thus, this rule concerning ‘just claims’ is an exception to the general principle of client loyalty.” Id. (citations omitted).

We have no doubt that a charging lien is a “just claim” that successor counsel can-not ignore in disbursing the proceeds of the representation.6 However, we noted in Opinion 293 that Rule 1.15 “does not apply to claims of which the lawyer lacks knowledge.” The issue for this opinion is whether prior counsel’s confidentiality obligation to the client precludes prior counsel from giving notice of the charg-ing lien to successor counsel or other likely custodians of encumbered funds or property. The answer is no.

D. Confidentiality Obligations Gen-erally in Matters Relating to Unpaid Fees and Terminations of Representa-tions

Rule 1.6 defines a lawyer’s confi-dentiality obligation to the lawyer’s current and former clients. The obliga-tion extends to both “confidences” and “secrets.”

“Confidence” refers to information pro-tected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the pro-fessional relationship that the client has requested be held inviolate, or the dis-closure of which would be embarrass-ing, or would be likely to be detrimental, to the client.

Rule 1.6(b). This rule is broader than the attor-

ney-client privilege because it includes both privileged information (defined as a “confidence”) and non-privileged infor-mation gained within the professional relationship that fits within the rule’s definition of a “secret.” While encom-passing more than is covered by the evidentiary privilege, the confidentiality

obligation in D.C. has outer limits. If some specific bit of information gained in the professional relationship is neither a “confidence” nor a “secret,” the rule’s confidentiality obligations do not apply to it.7

There is an exception to the confidenti-ality obligation for fee disputes: “A law-yer may use or reveal client confidences or secrets: . . . to the minimum extent necessary in an action instituted by the lawyer to establish or collect the law-yer’s fee.” Rule 1.6(e)(5). However, this exception is limited to “an action insti-tuted by the lawyer” to collect or estab-lish the fee. The client’s mere refusal to pay does not trigger this confidentiality exception. Disclosure can only be made within the context of that “action.”

Even when it applies, the fee dispute exception does not authorize unfettered use by the lawyer of every confidence and secret obtained from the delinquent

client. Disclosures may be made in “the action” only “to the minimum extent nec-essary” to establish or collect the fee. As explained in the comments to Rule 1.6:

Subparagraph (e)(5) permits a lawyer to reveal a client’s confidences or secrets if this is necessary in an action to col-lect fees from the client. This aspect of the rule expresses the principle that the beneficiary of a fiduciary relation-ship may not exploit it to the detriment of the fiduciary. Subparagraph (e)(5) should be construed narrowly; it does not authorize broad, indiscriminate dis-closure of secrets or confidences. The lawyer should evaluate the necessity for disclosure of information at each stage of the action. For example, in drafting the complaint in a fee collection suit, it would be necessary to reveal the “secrets” that the lawyer was retained by the client, that fees are due, and that the client has failed to pay those fees. Fur-ther disclosure of the client’s secrets and confidences would be impermissible at the complaint stage. If possible, the law-yer should prevent even the disclosure of the client’s identity through the use of John Doe pleadings.

If the client’s response to the lawyer’s complaint raised issues implicating con-fidences or secrets, the lawyer would be permitted to disclose confidential or secret information pertinent to the client’s claims or defenses. Even then, the rule would require that the lawyer’s response be narrowly tailored to meet the client’s specific allegations, with the minimum degree of disclosure sufficient to respond effectively. In addition, the lawyer should continue, throughout the action, to make every effort to avoid unnecessary disclosure of the client’s confidences and secrets and to limit the disclosure to those having the need to know it. To this end the lawyer should seek appropriate protective orders and make any other arrangements that would minimize the risk of disclosure of the confidential information in question, including the utilization of in camera proceedings.

Rule 1.6 cmts. [26] & [27].Lawyers may terminate representa-

tions of clients who do not pay their fees. Under Rule 1.16(b)(3), “a lawyer may withdraw from representing a client if . . . [t]he client fails substantially to fulfill an obligation to the lawyer regard-ing the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.” If the matter is before a court or other tribunal, however, the tribunal’s

6We understand that the engagement agreements of some lawyers include an explicit lien in the law-yer’s favor on any proceeds of the representation to the extent that the lawyer’s fees are not paid or oth-erwise secured. As noted above, an equitable charg-ing lien is unnecessary when there is an express lien. See generally Wolf v. Sherman, 682 A.2d at 198 & 200-201. Such an express lien would also be a “just claim” for purposes of Rule 1.15 whether the lien claimant had agreed to work on an hourly fee, a flat fee, or a contingent fee.

7The “confidences” and “secrets” approach used in D.C. Rule 1.6 differs from Model Rule 1.6, which makes confidential “information relating to the rep-resentation of a client.” The ABA’s “confidentiality rule . . . applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” Model Rule 1.6 cmt. [3]. In the mid-1980s, when the District was considering whether to adopt the Model Rules of Professional Conduct, the District rejected the ABA approach as “broader than war-ranted” and recommended retention of Disciplinary Rule (DR) 4-101 approach from the District’s then-controlling Code of Professional Responsibility. Proposed Rules of Professional Conduct and Relat-ed Comments Showing the Language Proposed by the American Bar Association, Changes Recom-mended by the District of Columbia Bar Model Rules of Professional Conduct Committee, and Changes Recommended by the Board of Governors of the District of Columbia Bar at 52, ¶ 38 (Nov. 19, 1986). DR 4-101 used the “confidences” and “secrets” formulation now reflected in D.C. Rule 1.6(b). A number of other jurisdictions also retained the confidences and secrets formulation of the con-fidentiality obligation or its functional equivalent. The rules in New York and Virginia, for example, deleted the defined terms “confidence” and “secret” but replaced them with the phrases that the Code of Professional Responsibility used to define those words. See New York Rule 1.6(a) (“ ‘Confidential information’ consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detri-mental to the client if disclosed, or (c) information that the client has requested be kept confiden-tial.”); Virginia Rule 1.6(a) (“A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client….”). See also Califor-nia Bus. & Prof. Code § 6068(e)(1) (“It is the duty of the attorney to do all of the following: . . . To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”).

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permission to withdraw may also be required. Rule 1.16(c).

Rule 1.6 limits what a lawyer can say in a motion seeking to withdraw from a representation. Unlike “an action insti-tuted by the lawyer” to collect a fee, there is no specific exception to Rule 1.6 for withdrawal motions. In In re Gonzalez, 773 A.2d 1026 (D.C. 2001), a lawyer was admonished for revealing too much in a motion to withdraw from a representa-tion. Accord In re Ponds, 876 A.2d 636 (D.C. 2005). The lawyer in the Gonzalez case had made no attempt to keep sensi-tive client information away from oppos-ing counsel and out of public filings. The court noted that:

Gonzalez could have submitted his doc-umentation in camera, and that he could also have made appropriate redactions of the material most potentially damag-ing to his clients (e.g., his allegations that A.A. had misrepresented facts to him and his suggestion, in one of the letters, that a demand of $90,000 by the plaintiffs in the underlying litigation might be reasonable).

773 A.2d at 1032. ABA Formal Opinion 476 (2016) pro-

vides extensive guidance about confi-dentiality issues in withdrawal motions under the Model Rules. It concluded:

In moving to withdraw as counsel in a civil proceeding based on a client’s fail-ure to pay fees, a lawyer must consider the duty of confidentiality under Rule 1.6 and seek to reconcile that duty with the court’s need for sufficient informa-tion upon which to rule on the motion. Similarly, in entertaining such a motion, a judge should consider the right of the movant’s client to confidentiality. This requires cooperation between lawyers and judges. If required by the court to support the motion with facts relating to the representation, a lawyer may, pursu-ant to Rule 1.6(b)(5), disclose only such confidential information as is reason-ably necessary for the court to make an informed decision on the motion.

In finding that some limited disclosure was possible if steps to avoid such disclo-sure were unsuccessful, the ABA opinion relied on Model Rule 1.6(b)(5), which allows a lawyer to reveal client confiden-tial information “to the extent the lawyer reasonably believes necessary . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.”

Although that section does not mention fee collection matters specifically, this is the part of Model Rule 1.6 that allows

lawyers to use client confidential infor-mation in fee disputes with lawyers. In relying on that section to authorize some disclosures in the withdrawal context, the ABA opinion noted that “motions to withdraw based on a client’s failure to pay fees are generally grounded in the same basic right of a lawyer to be paid pursuant to the terms of a fee agreement with a client.” ABA Opinion 476, at 4.

E. Application of These Principles to Giving Notice of a Charging Lien

With that background, may an attorney seek to enforce his or her charging lien by giving notice of it to successor counsel or to another likely custodian of the funds or property to which the lien relates? We believe that the attorney may, for the reasons discussed below.

The District’s confidentiality rule only applies to “confidences” and “secrets,” as defined in Rule 1.6. Attorney fee agreements are not normally within the scope of the attorney-client privilege. See generally 1 Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 131-40 (6th ed. 2017). Nor are billing statements, at least not when time entries containing privileged or confidential information are redacted. Id. at 157-62. The existence of the lien is certainly not a “confidence.”

However, the existence of the lien would be a “secret” within the protec-tions of Rule 1.6 if it were “information gained in the professional relationship that the client has requested be held invi-olate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.” Whether something is a “secret” for purposes of Rule 1.6 depends on the facts and cir-cumstances in a particular matter.

However, the client has the power to make any information gained in the professional relationship a “secret” for purposes of Rule 1.6 by “request[ing]” that the information “be held inviolate.” We will assume for purposes of this opinion that the client has invoked that power with respect to the information that would need to be included in the notice of a charging lien. Indeed, a sophisticated client might even attempt to use that power to avoid having to pay for prior counsel’s services by:

● Ordering prior counsel not to tell others about his or her charging lien; and

● Ordering successor counsel not to inform prior counsel that the client

prevailed and that there is a fund from which prior counsel might be able to seek a fee.

Such skullduggery will not stand. “The Rules of Professional Conduct are rules of reason. They should be inter-preted with reference to the purposes of legal representation and of the law itself.” Rules of Professional Conduct: Scope cmt. [1].

We previously concluded in Opinion 293 that lawyers must disregard client instructions to ignore “just claims” by third parties to funds in the lawyer’s possession. “Where such a ‘just claim’ exists, the lawyer is ethically obliged to disregard her client’s demand for the property. Thus, this rule concerning ‘just claims’ is an exception to the general principle of client loyalty.”8

More precisely on point is Califor-nia Legal Ethics Opinion 2008-175 answering the question “What are a successor attorney’s ethical obligations when her client in a contingency fee matter instructs her not to notify prior counsel, who has a valid lien against the recovery, of the fact or the amount of a settlement?” In that opinion, a cli-ent (Client) retained an attorney (A) to pursue a legal malpractice claim on a one-third contingent fee basis. After an investigation uncovered potential prob-lems with the claim, A recommended that Client authorize a $150,000 pre-suit settlement offer. Believing the claim to be worth much more, Client fired A and retained another attorney (B) without A’s knowledge on a one-third contingent fee basis. Client did mention A’s earlier involvement to B. Then things got complicated:

After months of intensive litigation, Cli-ent settles his malpractice case against Former Attorney for $150,000. Attorney A is not aware that the legal malpractice case has been filed so he has not filed a notice of lien. On the defense side, no one is aware of Attorney A’s lien as he was discharged prior to suit being filed. As a result, the settlement check is made payable solely to Client and Attorney B.

Having learned of the terms of the origi-nal fee agreement between Client and Attorney A, Attorney B presents Client with an accounting showing $100,000 payable to Client and $50,000 in attor-ney’s fees to be divided between Attor-ney B and Attorney A.

8D.C. Legal Ethics Opinion 293 (2000).

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Client endorses the $150,000 check for deposit into Attorney B’s Client Trust Account (“CTA”), demands the imme-diate payment of the $100,000 due him, and signs the accounting after adding the following handwritten statement: “I authorize the payment of $50,000 in attorneys’ fees to Attorney B. I prohibit payment of any fee to Attorney A, and I prohibit Attorney B to disclose the fact or the amount of the settlement to Attorney A.”

The California opinion concluded that, notwithstanding Client’s instructions, Attorney B had to alert Attorney A of the fact and the amount of the settlement so that A could seek to enforce his charging lien as to up to one third of the recovery. Part of its analysis reflected an attorney’s obligations to third party claimholders under California’s equivalent of Rule 1.15. That analysis reached largely the same conclusions as our Opinion 293.

In order to permit that disclosure to Attorney A notwithstanding the client’s instructions to the contrary, the Cali-fornia committee also had to find an exception to every California attorney’s rigorous confidentiality obligation “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Cal. Bus. & Prof. Code § 6060(e)(1). It found that exception in a California Supreme Court approved comment to then-California Rule 3-310 authorizing disclosure of client confidential informa-tion “as authorized or required by the State Bar Act, these Rules, or other law.”

As explained below, the opinion found a “required by law” exception to confi-dentiality for the fact and the amount of the settlement, but also held that further disclosures potentially harmful to the cli-ent would be prohibited:

Based upon the authorities cited in our discussion of [the trust account issue] above, we conclude that disclosure to Attorney A of the fact and amount of the settlement between Client and For-mer Attorney is both authorized and required under applicable ethical rules and case law.

First, Attorney B is required by law to take affirmative steps to permit Attorney A to assert any claims he has pursuant to his valid lien against the $50,000 attor-ney’s fee recovery. In this regard, Attor-ney B is required by law to disclose the fact and the amount of the settlement to Attorney A because, as a fiduciary to Attorney A, Attorney B has an affir-mative duty to notify the lienholder of

the settlement as well as an affirmative duty not to conceal material facts from Attorney A.

Second, disclosure of the fact and amount of settlement to Attorney A is authorized by law. Attorney B cannot unilaterally decide what portion of the $50,000 total fee can be disbursed from trust to pay her own fee. Thus, without disclosure to Attorney A, Attorney B has no basis upon which to calculate and to remove from trust the portion of the fee she earned, leaving both attor-neys uncompensated. In that regard, we note that under California law attorneys are expressly released from the duty to maintain client secrets in order to obtain compensation for services rendered.

While Attorney B is both authorized and required to disclose the fact and the amount of the settlement, there is no justification for her to disclose to Attorney A, without Client’s consent, privileged confidential information such as the Client’s demand that the fact and the amount of the settlement be con-cealed from Attorney A. Thus, Attorney B must keep that statement confidential even though it could potentially work to Attorney B’s advantage in negotiat-ing with Attorney A over his quantum meruit claim.

Once Attorney A has been notified of the settlement, both attorneys must remain mindful of their duty of con-fidentiality to Client in attempting to reach an accord, amicably or through legal process, on the proper allocation of fees. Moreover, should the attor-neys resort to legal process to resolve any dispute over allocation of the fee, Attorney B should provide Client with notice and an opportunity to participate should Client so desire. In any legal proceeding, the presiding officer will be in a position to limit the disclosure of confidential information to the greatest extent possible.

California Opinion 2008-175, at 5-6 (citations omitted).

The D.C. Rules also have a “required by law” exception. Under Rule 1.6(e)(2)(A), “[a] lawyer may use or reveal client confidences or secrets . . . when permit-ted by these Rules or required by law or court order.” While the adoption of the D.C. Rules of Professional Conduct in 1991 specifically limited rights that lawyers previously had with respect to retaining liens, as discussed above, none of the new rules purported to limit charg-ing liens. Indeed, Rule 1.8(i) begins by authorizing a lawyer to “acquire and

enforce a lien granted by law to secure the lawyer’s fees or expenses.” The remainder of that rule pares back the law-yer’s prior rights with respect to retaining liens but does nothing to limit use of charging liens.

Given that historical background and our prior Opinion 293, we agree with the California opinion that client demands for secrecy cannot preclude all com-munications relating to the assertion and enforcement of charging liens. Thus:

● When the attorney with the charging lien reasonably believes it necessary to protect the lien to give notice of that lien to successor counsel or to another potential holder of the funds or property subject to the lien, that notice may be given even if the cli-ent objects to it.

● When successor counsel reasonably believes it necessary to give notice to prior counsel under our Opinion 293 respecting “just claims” by third parties to funds in the lawyer’s pos-session, that notice must be given even if the client objects to it.

However, care should be taken before making any further disclosures. As in fee disputes between lawyer and client, disclosures should be made only “to the minimum extent necessary” to protect the lien claim. Rule 1.6(e)(5). See also In re Gonzalez, supra (respecting disclosures in a motion to withdraw from a represen-tation). Moreover,

the lawyer should . . . make every effort to avoid unnecessary disclosure of the client’s confidences and secrets and to limit the disclosure to those having the need to know it. To this end the law-yer should seek appropriate protective orders and make any other arrangements that would minimize the risk of disclo-sure of the confidential information in question, including the utilization of in camera proceedings.

Rule 1.6 cmt. [26].9

Conclusion

An attorney whose fees are secured by a charging lien against the client’s future recovery in a matter may give notice of the existence of the charging lien to suc-

9The standards for proving a fee claim at trial are typically different than what would be required ini-tially to assert a charging lien for that fee. As such, we would question the ethical propriety of serving copies of invoices upon an opposing counsel as part of a charging lien notification package

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cessor counsel or another likely holder of the property subject to the lien if the attor-ney’s representation in the matter is termi-nated before there is a recovery. Absent the former client’s consent, however, the notice must not contain information about the client’s lack of resources, the client’s past refusals to pay, or any other informa-tion gained in the professional relationship that would be embarrassing, or likely to be detrimental, to the client. Any further efforts to enforce the lien or collect the fees must comply with the rules governing fee disputes between lawyers and clients. Disclosures of client confidences can be made only to the minimum extent neces-sary to collect the fees, and even then protective orders and filings in camera or under seal should be used to the maximum extent possible to protect client confiden-tial information from exposure to third parties without a need to know.

Published December 2020

Opinion 380

Conflict of Interest Issues Related to Witnesses

This Opinion examines certain recur-ring conflict of interest issues related to witnesses. Such issues can arise under D.C. Rules of Professional Conduct 1.7 and 1.9, and when they arise, Rule 1.10(a) can impute resulting conflicts within law firms, as that term is defined in Rule 1.0.

Section I outlines the practice sce-narios in which these conflicts are most likely to arise: (A) issuing subpoenas to current or former clients; (B) advising current or former clients who are poten-tial witnesses about Fifth Amendment rights; and (C) cross-examining current or former clients. Section II addresses the existence and resolution of unavoidable conflicts: (A) the creation of thrust-upon conflicts involving unforeseen witnesses and (B) the imputation of conflicts of interest across a firm. Section III offers practice suggestions for anticipating, identifying, preventing, and resolving conflicts of interest related to witnesses.

Applicable Rules• Rule 1.0 (Terminology)• Rule 1.1 (Competence)• Rule 1.3 (Diligence and Zeal)• Rule 1.6 (Confidentiality of

Information)• Rule 1.7 (Conflict of Interest: General

Rule)

• Rule 1.9 (Conflict of Interest: Former Client)

• Rule 1.10 (Imputed Disqualification: General Rule)

Introduction

Conflicts under Rules 1.7 and 1.9 can arise from the many differing interests of clients and former clients who know, or may know, facts related to litigation. For example, such clients may prefer not to become witnesses and therefore not to be subpoenaed to testify. If they testify, they may prefer not to have their testimony challenged by cross-examination. Or they may prefer not to disclose certain information even though it is relevant to the litigation. Some witnesses may want to obtain an advantage from being witnesses. Some witnesses may want to avoid becoming targets in criminal prosecutions or par-ties in civil litigation.

The interests of client-witnesses can conflict with the interests of other cli-ents, including clients currently involved in litigation. Litigation parties usually have interests in mustering all evidence in support of their cases, as well as in limiting or qualifying adverse evidence. Consequently, their lawyers may issue subpoenas and conduct cross-examina-tions. At the same time, both parties and witnesses have interests in obtaining counsel of their choice and in competent, diligent, and zealous representation by that counsel.1

Whether or not a witness-conflict aris-es, is imputed to an entire law firm, or is waivable by affected clients or former clients will depend on the facts and cir-cumstances. Some commonly recurring scenarios are discussed below.

A. Subpoenaing current or former clients who do not want to testify

The representation of witnesses and any related conflicts of interest are subject to Rules 1.7 and 1.9. Generally, these Rules detail the circumstances constituting conflicts of interest aris-ing from current client (Rule 1.7) and former client (Rule 1.9) representa-tions. As reflected in the Rules and highlighted below, avoiding current or former client conflicts associated with witnesses involves considerations of loyalty and confidentiality together

with ensuring delivery of diligent and competent representation.2

One common question is whether issu-ing a subpoena to a current client, or to a former client in a substantially relat-ed matter, always constitutes a conflict. Ethics committees that have examined this question have reached different con-clusions.3 For example, the California Standing Committee on Professional Responsibility and Conduct concluded that serving a discovery subpoena “is an adverse action such that a concurrent cli-ent conflict of interest arises.”4 The New York City Bar was not so absolute in its approach, concluding in Opinion 2001-3 that “[s]ubpoenaing a current client on behalf of another current client ordinarily entails a conflict of interest that requires that the attorney obtain informed written consent from both clients.” (emphasis added.) On the related subject of cross-examining a client, the ABA in Formal Opinion 92-367 opines that cross-exam-ination “will likely” constitute a conflict. (emphasis added.)

The Committee disagrees with Cali-fornia’s opinion that the issuance of a subpoena to a current client is a per se conflict of interest. In our view, subpoe-naing a current client creates a conflict only if the client objects, or if it is reason-ably foreseeable that the client will object to any aspect of the subpoena or to the burden and costs it creates.

A client-witness, or former client-witness, may want to help a lawyer’s litigation client but may prefer to receive a subpoena because the wit-ness might receive a financial or other benefit in connection with a deposition or court appearance only if a subpoena were issued. Issuance of that subpoena would not create a conflict. However, if a client-witness or former-client witness preferred not to testify for any reason, subpoenaing that witness would create

1 See Rule 1.1 regarding the provision of compe-tent representation, Rule 1.3 regarding the provision of diligent and zealous representation, and Rule 1.7(c)(2) regarding conflict waivers.

2 These issues are addressed in detail in the con-text of responding to third-party subpoenas in D.C. Bar Legal Ethics Opinion 381 (2021).

3 See generally, e.g., Virginia Ethics Opinion 1882 (2015) (explaining that concurrent represen-tation of two clients in unrelated criminal matters requires withdrawal from both representations if one client offers to provide incriminating informa-tion to prosecutors regarding the other client); Cali-fornia Ethics Opinion 2011-182 (2011); N.Y. City Bar Opinion 2001-3 (2011); Connecticut Bar Opin-ion 99-14 (1999) (determining that lawyer could not have reasonably concluded that cross-examination of a current client in an unrelated matter constituted a waivable conflict based on the facts underlying the litigation and the nature of the representation); ABA Formal Opinion 92-367 (1992).

4 See California Formal Opinion No. 2011-182.

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a conflict because of the compulsion to testify.

We therefore agree with the New York City Bar that the issuance of a subpoena to a current client, or to a former client in a substantially related matter, will ordi-narily, but not always, result in a conflict.

1. Rule 1.7(a) – Current clients’ adverse positions or interests in the same matter

Rule 1.7(a) states, “A lawyer shall not advance two or more adverse positions in the same matter,” and defines the limited circumstances in which representation of conflicting interests is absolutely pro-hibited even with the informed consent of all involved clients. When a lawyer undertakes the joint representation of a litigation party and a witness in the same litigation, Rule 1.7(a) therefore prohibits the lawyer from subpoenaing the wit-ness on behalf of the party if the witness would not want to testify for any reason.5 The lawyer cannot on behalf of the litiga-tion party advance the position that the witness should be required to testify and at the same time advance the position on behalf of the witness that he should not be required to testify as demanded by the subpoena.

Such a conflict could arise in a joint representation of an employer and an employee-witness whose interests appear aligned at the beginning of a litigation. Later, factual questions about which they disagree could arise, or their substantive interests related to the litigation could change. If the employee-witness does not want to testify at that later point, because she does not want to be cross-examined or because she now disagrees with the purpose of the litigation, issuing a sub-poena would constitute a non-waivable conflict under Rule 1.7(a). Similarly, the employee-witness may be willing to testify while his or her employment continues but not willing to testify after that employment ends. If the joint rep-resentation continues after the end of employment, issuing a subpoena would constitute a non-waivable conflict.

2. Rule 1.7(b) – Concurrent clients’ adverse positions or interests not in the same matter

Rule 1.7(b) protects the same client-witness interests protected by Rule 1.7(a) when a lawyer represents a subpoenaing litigation party and at the same time, in an unrelated matter, represents a client

who happens also to be a witness in the party’s case, even if the client-witness is represented by another law firm in the litigation.6 Unlike conflicts arising in the same matter under Rule 1.7(a), however, conflicts arising under Rules 1.7(b)(1) through (4) are waivable, and Rule 1.7(c) permits a lawyer to seek informed con-sent to the lawyer’s continued representa-tion. Specifically, Rule 1.7(c)(1) requires informed consent from “each potentially affected client . . . after full disclosure of the existence and nature of the pos-sible conflict and the possible adverse consequences of such representation.”7 Consent may only be sought, however, if the lawyer reasonably believes “that the lawyer will be able to provide com-petent and diligent representation to each affected client.”8

Under Rule 1.7(b)(1)9, a conflict would arise if a matter involves a specific party or parties and “a position to be taken by one client in a matter is adverse to a posi-tion taken or to be taken by another client in the same matter even though the other client is unrepresented or represented by a different lawyer.”

Example. If a lawyer’s client, who happens also to be a witness in another

client’s case, does not want to be sub-poenaed for any reason, Rule 1.7(b)(1) applies because litigation is a “mat-ter involv[ing] a specific party or par-ties” and the position taken by the party issuing the subpoena is adverse to the position of the witness who objects to testifying.

Under Rule 1.7(b)(2) or (b)(3),10 a conflict would arise if the representation of either a client-witness or a client-party would be or likely would be adversely affected by the representation of the other client.

Examples of client-witness interests. In one example, a lawyer represents a client-witness in a business transaction unrelated to a trial in which the lawyer represents a party where the business client will be a witness. If the business transaction would be or likely would be disrupted by public testimony of the witness, a conflict would result from the issuance of a trial subpoena. In another example, a lawyer represents a client-witness in obtaining a security clearance that the client needs to expedite in order to obtain a new job. If the clearance would be or likely would be delayed if the client has to report to the Department of Defense the fact of recent testimony, a conflict would result from a subpoena. In each example, the lawyer would need to obtain the informed consent of the client-witness after informing the client of the possible negative consequences of testifying. The lawyer would also have to be satisfied objectively and subjectively that the lawyer would be able to provide competent and diligent representation to each client. In the first example, the lawyer would need to have a reasonable belief that she would be able to address the disruption to the business transaction without harm to the client. And in the second example, the lawyer would need a reasonable belief that a timely clear-ance could be obtained notwithstand-ing reporting requirements and potential resulting delays.

Examples of client-party interests. As a general proposition, a client-party issu-ing a subpoena has an interest in ensuring that all available evidence is mustered for the party’s benefit. In the examples above, if the business client or security-clearance client of the lawyer objects

5 See D.C. Bar Legal Ethics Opinion 217 (1991).

6 Accord N.Y. City Bar Opinion 2017-6.

7 See also Comment [27] to Rule 1.7 (“Adequate disclosure requires such disclosure of the parties and their interests and positions as to enable each potential client to make a fully informed decision as to whether to proceed with the contemplated representation.”). As with all conflict waivers, the need to obtain informed consent does not relieve the lawyer of the duty under Rule 1.6 to maintain the confidences and secrets of all current and for-mer clients or seek consent to disclose. If a lawyer cannot provide adequate information to a client or prospective client to obtain informed consent, then the representation that the waiver would permit, if it could have been obtained with disclosure of the necessary information, cannot proceed: “If a lawyer’s obligation to one or another client or to others or some other consideration precludes mak-ing such full disclosure to all affected parties, that fact alone precludes undertaking the representation at issue.” Id.

8 Rule 1.7(c)(2). See also Comment [30] to Rule 1.7 (“Generally, it is doubtful that a lawyer could hold such a belief where the representation of one client is likely to have a substantial and material adverse effect upon the interests of another client, or where the lawyer’s individual interests make it likely that the lawyer will be adversely situated to the client with respect to the subject-matter of the legal representation.”).

9 Rule 1.7(b)(1) states: “Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if: (1) that matter involves a specific party or parties and a position to be taken by that client in that matter is adverse to a position taken or to be taken by another client in the same matter even though that client is unrep-resented or represented by a different lawyer; . . . .”

10 Rule 1.7(b)(2) and (b)(3) states: “Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if: . . . (2) such representation will be or is likely to be adversely affected by representation of another client; [or] (3) representation of another client will be or is likely to be adversely affected by such rep-resentation; . . . .”

434 THE DISTRICT OF COLUMBIA BAR February 2021

to the subpoena, a conflict would result if the lawyer’s client-party would be or likely would be adversely affected by the absence of evidence. Rule 1.7(c)(1) would then require the lawyer to obtain the client-party’s informed consent to not issue the subpoena. Under Rule 1.7(c)(2), even if the client-party consented, the lawyer also reasonably would have to believe that she could provide competent and diligent representation, for example, in the absence of the witness or, as another example, if conflict counsel were employed.11 Such a determination usu-ally would take into consideration fac-tors like the importance of the involved issue, the availability of other evidence to address the issue, or the effect of using conflict counsel.12

Regarding Rule 1.7(b)(4),13 in some circumstances, the lawyer’s own inter-ests may give rise to a “punch-pulling” conflict, which could render compliance with 1.7(c)(2) difficult.14

Example. A witness in another client’s upcoming trial also happens to be a long-standing and lucrative client of the lawyer in other unrelated matters. The client-witness might be an important source of testimony in the trial. At the same

time, however, there are other sources of facts—maybe documents alone or docu-ments and other witnesses—to prove the fact that the client-witness would be asked to establish. In any event, for a reason unrelated to any matters in which the lawyer represents the client-witness, the witness would prefer not to testify but will consent to receiving a subpoena. Whether or not to issue the subpoena to the client-witness is left to the sound judgment of the lawyer. Depending on the facts, then, “the lawyer’s own finan-cial . . . or personal interests,” given the lawyer’s relationship with the cli-ent-witness, could cause a Rule 1.7(b)(4) “punch pulling” conflict against the interests of the client-party on the judg-ment-call question whether a subpoena should issue to the witness. In the event of a “punch-pulling” conflict, informed consent by the client-party under Rule 1.7(c) again would be required, and the lawyer reasonably would have to believe that the lawyer would be “able to provide competent and diligent representation” to the client-party.

Rule 1.9 – Former-client adverse positions or interests

Under Rule 1.9, a lawyer “who has formerly represented a client in a matter shall not thereafter represent another per-son in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.” A lawyer who is considering issuing a subpoena to a former client must consider whether the current matter is “the same or . . . sub-stantially related” to the former client’s matter,15 and whether issuance of the subpoena would be considered “materi-ally adverse.”16 In determining whether matters are substantially related, a lawyer should consider, among other things, whether “they involve the same transac-tion or legal dispute or if there otherwise

is a substantial risk that confidential fac-tual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”17

In its discussion of Rule 1.7(a) above, the Committee explains that a lawyer cannot on behalf of one client advance a position requiring another client in the same matter to testify and at the same time advance the position on behalf of the other client that she should not be required to testify. Such positions are inherently adverse. Similarly, in the for-mer client context, the coercive effect of a subpoena creates material adversity if a former client does not want to testify in a substantially related matter. In the event of a conflict in a substantially related matter, the lawyer may not properly issue the subpoena without the informed con-sent of the former client.

B. Potential conflicts in connection with advising current or former clients about Fifth Amendment rights

In D.C. Legal Ethics Opinion 232 (Multiple Clients/Criminal Matters), the Committee considered another context in which a client-witness conflict might arise in another client’s unrelated matter. The specific inquiry involved a lawyer seeking to represent a client-witness in asserting his Fifth Amendment rights not to testify in a murder case against a current client of the lawyer’s partner who was represented in the murder case by another law firm. Neither the murder case defendant nor the client-witness wanted the witness to testify. The Com-mittee concluded that there was no con-flict under Rule 1.7(b)(1) on the facts of the inquiry because the assertion of Fifth Amendment rights was not adverse to the interests of the murder-case defendant. In the words of Rule 1.7(b)(1), there was no adversity of the “positions” of the wit-ness and the defendant.

At the same time, the Committee opined that a Rule 1.7(b)(1) conflict would arise under the Rule if the client-witness “should later decide that it is in his interest to bargain his testimony against [the murder-case defendant] for some advantage.” In that event, the pros-pect of adverse “positions” would have

11 “Conflicts counsel” is the designation gener-ally applied to the retention of a lawyer from a dif-ferent firm engaged solely to represent the client on the discrete, severable aspect of the matter that gave rise to the conflict. See generally Ronald D. Rotun-da, Resolving Client Conflicts by Hiring ‘Conflicts Counsel,’ 62 Hastings L. J. 677 (2011) (conclud-ing that use of conflicts counsel is a useful tool to ameliorate the costs of disqualifying lawyers, while protecting legitimate client interests in confidenti-ality and loyalty). The use of conflicts counsel is consistent with our conclusion in D.C. Legal Ethics Opinion 343 (2008). In that opinion, we explained a lawyer may limit the scope of an engagement to a discrete legal issue or stage of litigation to avoid a conflict of interest under Rule 1.9.

12 Similar considerations about informed con-sent and competent, diligent, and zealous represen-tation apply to each of the Rule 1.7 and 1.9 witness contexts discussed in this opinion.

13 Rule 1.7(b)(4) states: “Except as permitted by paragraph (c) below, a lawyer shall not represent a client with respect to a matter if: . . . (4) the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the law-yer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.”

14 “Punch pulling” is a boxing term that refers to a fighter purposefully hitting his adversary with less than full force – as if the fighter pulled back a punch before making contact. In the professional respon-sibility context, a punch pulling conflict refers to circumstances where a lawyer is less zealous in advocating for, or advising, a client out of concern over the impact on the lawyer’s representation of another client.

15 The substantial relationship test of Rule 1.9 has a different scope than that of Rule 1.6 in con-nection with confidential information: “Matters are ‘substantially related’ for purpose of this rule if they involved the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materi-ally advance the client’s position in the subsequent matter.” Comment [3] to Rule 1.9.

16 The meaning of “material adversity” is deter-mined by the principles of Rule 1.7, including the specific language of the Rule and the principles discussed in Comments [7] and [8] to Rule 1.7. See also Comment [1] to Rule 1.9.

17 See Comment [3] to Rule 1.9; D.C. Legal Ethics Opinion 343 (2008) (discussing factors in determining whether matters are substantially related, as well as the rebuttable presumption that confidences were exchanged if the substantial rela-tionship factors are met).

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arisen because the client-witness could decide to testify when the client-defen-dant wanted the witness not to testify. In coming to this conclusion, the Commit-tee concluded that the Fifth-Amendment bargaining and the murder-case defense involved the same “matter” under the Rule, and that waiver of the conflict would require the informed consent of both witness and defendant.

D.C. Legal Ethics Opinion 232 also noted that Rule 1.7(b)(2) would be impli-cated if a lawyer counseled a current client-witness not to testify against a cur-rent client-party when that advice might be adverse to the interests of the current client-witness. For example, if the refus-al to testify were not legally warranted, the witness might be held in contempt of court. In this hypothetical, informed con-sent from the murder case defendant and the client-witness would be required after “full disclosure of the possible adverse consequences” of the advice.

Today, we add that a Rule 1.7(b) conflict would also arise if it were in the client-witness’s interest to invoke the Fifth Amendment when the witness’s testimony would assist the defense of the client-defendant.

C. Cross-examining current or former clients

D.C. Legal Ethics Opinion 232 also provides a framework for addressing cross-examination conflict issues.

1. Concurrent clients

To begin with, the prospect of a law-yer’s cross-examination of a current cli-ent-witness in the trial of another client of the lawyer obviously would occur in the same “matter” for the purpose of both Rule 1.7(a), if there were a joint repre-sentation, and 1.7(b)(1), if the defendant were represented in the criminal case by another firm.

If a lawyer were representing both a party and a witness in the same case, Rule 1.7(a) would prohibit any cross-examination of the witness adverse to any position that the witness took on direct examination. Informed consent could not remove this conflict.

The question then arises whether all cross-examinations of a client-witness who would testify adversely to a client-party on direct examination are con-flicted under Rule 1.7(a), which prohibits only advancing “two or more adverse positions in the same manner.” The Com-

mittee concludes that there may be cir-cumstances in which a lawyer could cross examine a client-witness who testi-fies adversely to a client-party on direct examination without running afoul of Rule 1.7(a) with the informed consent of both the client-witness and client-party.

Example. In a civil trial, a lawyer rep-resents both a corporate defendant and a former employee of the defendant as a witness. The plaintiff calls the former employee-witness in the plaintiff’s case in chief, and the witness (a) authenticates documents that reflect meeting commu-nications adverse to the interests of the defendant; and (b) testifies that the wit-ness clearly recalls the communications. Rule 1.7(a) would prohibit the lawyer from attempting to establish on a cross-examination that the documents were not authentic or that the communications did not occur. On the other hand, a cross examination in the nature of a redirect might not be prohibited. The lawyer might ask the witness (a) to authenti-cate other documents that ameliorate the adverse impact of the plaintiff’s exhibit on the defense case without contradict-ing the witness’s testimony; (b) to testify about other ameliorative communica-tions to the same effect as the additional documents; or (c) to explain the technical meaning of one of the communications reflected in the plaintiff’s exhibit. If such an examination were not adverse to any position taken by the witness on direct examination or the redirect, or to any position taken or to be taken by the corporate defendant, these circumstances should not constitute a conflict under Rule 1.7(a).

If a lawyer represented a party in litigation and if a current client of the lawyer in an unrelated matter also hap-pened to be a witness in that litiga-tion, while represented by other counsel, Rule 1.7(b)(1) again would preclude any cross-examination of the witness adverse to any position that the witness took on direct examination without the informed consent of each client. In contrast to a Rule 1.7(a) conflict, however, the Rule 1.7(b)(1) conflict is waivable pursuant to the terms of Rule 1.7(c).

Rules 1.7(b)(2) and (b)(3) also could be implicated in circumstances involving cross examination of the client-witness.

Example. A lawyer represents a party in highly publicized litigation. Following pretrial depositions, the lawyer under-stands that he may need to cross-examine a certain witness at trial by seeking authentication and introduction of certain documents. The lawyer then is asked to

represent the witness as a client in unre-lated business negotiations in which both sides of that negotiation agree that certain documents will not be exchanged. They include the documents that the lawyer may need to introduce at trial through the witness. Introduction of those docu-ments on the public record likely would adversely affect the witness-client’s busi-ness negotiating position, and the lawyer is aware of that fact. Under Rule 1.7(b)(2), representation of the witness in the business negotiations would require her informed consent to the conflict of inter-est arising by her authentication and introduction of the documents, as well as the informed consent of the litigation client. Of course, in seeking informed consent, the lawyer must remain mind-ful of protecting client confidences and secrets in accordance with Rule 1.6(a). The obligation to maintain confidences and secrets limits the information the lawyer may properly disclose to both the prospective client and existing client in seeking informed consent unless further consent to disclose relevant confidences and secrets for this purpose is obtained. In addition, the lawyer must “reason-ably believe” that she is able to provide competent and diligent representation to both clients in accordance with Rule 1.7(c)(2). In particular, the lawyer would need to assess whether requiring the client-witness to authenticate particular documents at trial is consistent with his obligations to deliver competent and dili-gent representation to the client-witness in the business negotiation.

A conflict under Rule 1.7(b)(3) could arise if a lawyer’s cross-examination similar to the previous example might adversely affect the interests of an exist-ing client in a different matter.

Example. A lawyer represents a client in ongoig business negotiations in which both sides agree that certain documents will not be exchanged. The lawyer is then asked by a new client to try a highly publicized case, in which the business client is a witness and the new client is a party. At the time of this request, the lawyer understands that she will need to cross-examine the business client by asking him to authenticate documents covered by the agreement in the busi-ness negotiations. If foregoing use of those documents at the trial likely would adversely affect the litigation client’s interests, a conflict would arise under Rule 1.7(b)(3). Again, provided the law-yer is able to seek informed consents without disclosing or using client con-fidences or secrets in violation of Rule

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1.6(a), undertaking representation of the litigation client again would require com-pliance with Rule 1.7(c)(2).18

The two previous examples also could present a Rule 1.7(b)(4) punch-pulling conflict against the interest of the litiga-tion client because the business client is a significant and lucrative client.19

Because of the lawyer’s “responsibilities to or interests in” the business client wit-ness, the lawyer’s professional judgment about whether to introduce the docu-ments at trial at all or about whether or how to cross-examine the witness could be adversely affected, and informed con-sent would be required from the litigation client.

If either client were not willing to provide that consent, then the lawyer would not be able to undertake the rep-resentation of the client-witness in the first example or of the client-party in the second example.

2. Former client

Under Rule 1.9 the same interest analysis, resulting conflicts, and need for informed consents discussed above could apply, depending on the timing of the facts, if a lawyer cross-examined a former client-witness in any matter that was the same as or “substantially related” to a matter in which the lawyer had formerly represented the witness. Furthermore, we note that the Court of Appeals held in Pinkney v. United States, 851 A. 2d 479, 487-788 (D.C. 2004), that a prior repre-sentation of a witness was substantially related to a later representation of a differ-ent client even though the two representa-tions involved different subject matters.20

In Pinkney, a criminal defendant challenged the trial court’s decision to disqualify his defense counsel (Wood) because of Wood’s prior and concurrent representation of a government witness (Henderson). Henderson was to testify at Pinkney’s criminal trial on behalf of the government about defendant’s alleged jailhouse confession. Wood had previously represented Henderson in an unrelated criminal matter, and was cur-rently representing him in two other unrelated criminal matters. Relying on precedent from the Second and Seventh Circuits, the District of Columbia Court of Appeals acknowledged that the sub-ject matter of Wood’s representation of Pinkney was unrelated to the subject mat-ter of his prior representation of Hender-son. 851 A.2d at 487-88. Nevertheless, Wood’s diligent and competent represen-tation of Pinkney would require Wood to attack Henderson’s credibility, implicat-ing confidences and secrets learned in the prior representation:

[B]ecause [Pinkney’s] defense would necessarily involve refuting Mr. Hen-derson’s testimony, it would consist mostly of attacking his credibility on cross-examination. . . . ‘Because this impeachment could be accomplished by eliciting specific instances of mis-conduct involving matters of truthful-ness, and because the trial court found that it was likely that [defense counsel] gained knowledge of such instances involving [the witness] through their attorney-client relationship, the trial court found that [defense counsel’s] prior representation of [the witness] was relevant to ‘the issues and determina-tions presented in the instant case.’ [B]ecause impeachment of Mr. Hender-son would be an important part of the defense, issues concerning Henderson’s credibility were therefore ‘substantially related’ to Mr. Wood’s representation of [Pinkney]. We think the approach taken by the Second and Seventh Circuits is sound, and thus we conclude that the court did not abuse its discretion in dis-qualifying Mr. Wood.

Id. (quoting United States v. O’Malley, 786 F.2d 786, 792 (7th Cir. 1986)).21 As highlighted in Pinkney, evaluating whether two matters are “substantially

related” under Rule 1.9 requires the law-yer to not only consider whether they involve the same transaction or legal dispute, but also whether there “is a sub-stantial risk that confidential information as would normally have been obtained in the prior representation would materially advance the client’s position in the subse-quent matter.”22

D. Thrust-Upon Conflicts

In rare circumstances, a Rule 1.7(b)(1) witness conflict may arise that was not reasonably foreseeable at the outset of the representation. In that case, even in the absence of informed consent, Rule 1.7(d) may allow a lawyer to cross-exam-ine the client-witness in an unrelated matter. Rule 1.7(d) provides:

If a conflict not reasonably foresee-able at the outside of representation arises under paragraph (b)(1) after the representation commences, and is not waived under paragraph(c), a lawyer need not withdraw from any representa-tion unless the conflict also arises under paragraphs (b)(2), (b)(3), or (b)(4).

The example below illustrates this thrust-upon conflict situation.

Example. A lawyer represents the buyer in a lengthy real estate transac-tion. The lawyer then undertakes repre-sentation of a company in defense of a fast-track patent case. Near the end of discovery in the patent case, the plain-tiff adds as a new expert witness: the lawyer’s real estate client. Even if the expert witness did not want to be cross-examined (or subpoenaed) by his or her lawyer, Rule 1.7(d) might apply if the addition of this particular expert witness was not reasonably foreseeable at the outset of the representation and the cross-examination would not adversely affect the real estate deal.

E. Imputation and Confidences or Secrets Regarding a Witness

Rule 1.6(a) forbids disclosure or use by a lawyer of the confidences or secrets of the lawyer’s current clients, and Rule 1.6(g) continues this obligation after ter-mination of the attorney client relation-ship.23

18 When the facts of this example are viewed from the perspective of the prospective party client, the conflict arises under 1.7(b)(2) rather than (b)(3). If the business client were not willing to waive the conflict under 1.7(b)(3) to allow the introduction of the documents, the lawyer could not introduce them, which could adversely affect the party’s liti-gation position. Just like the business client could decide to take the risk under 1.7(b)(3) and waive the conflict, the prospective party client could decide to take the litigation risk and provide informed con-sent to litigate the case without introduction of the business documents. The lawyer could accept this waiver assuming compliance with Rule 1.7(c)(2).

19 As a general matter, whenever a client-wit-ness’s interest may cause a conflict, the possibility of a “punch-pulling” conflict related to the client-party’s (or client-co-witness’s) interest should be considered.

20 Because it is beyond the scope of this Com-mittee, we do not address the application of Sixth Amendment jurisprudence to cross examination of current or former clients in criminal trials.

21 After concluding that disqualification of Wood was not an abuse of discretion, the Court of Appeals remanded the case to the trial court, faulting it for denying Pinkney’s motion to rein-state Wood. See 851 A.2d at 490-91. The Court explained the trial court was required to consider whether Wood’s conflict of interest still existed after the government no longer sought to call Hen-derson as a witness in Pinkney’s criminal trial.

22 Comment [3] to Rule 1.9.

23 Rule 1.6(a) states: “Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly: (1) reveal a confidence or secret of the lawyer’s client; (2) use a confidence or secret of the lawyer’s client to the disadvantage of the client; [or]

February 2021 THE DISTRICT OF COLUMBIA BAR 437

In connection with client witnesses, a lawyer may determine that she can-not satisfy Rule 1.7(b)(4): she is unable to provide competent and diligent legal services with independent judgment for a new client without drawing on her knowledge of the confidences or secrets of another current or former client that only the lawyer herself possesses. These confidences or secrets are unrelated to the substance of the representation and involve information that other lawyers at the firm are unlikely to have learned during the representation. The question then arises whether Rule 1.10 imputes a disqualification to the lawyer’s entire firm even though other firm lawyers do not know, and have not had access to, those confidences and secrets. In the Committee’s opinion, the answer to this question is no.

Example: A lawyer with a firm is considering representation of a defen-dant (Prospective Client A) in a criminal trial. The lawyer knows the prosecution intends to call Witness at trial who will testify about issues incriminating the defendant (Prospective Client A). The lawyer possesses certain information about this Witness she obtained dur-ing her representation of Client B in an unrelated business negotiation adverse to Party C. In particular, the lawyer learned from Party C that Client B and Witness were playing poker at a casino in Las Vegas on the precise date/time of the alleged crime of Prospective Cli-ent A. This information is completely extraneous to the business negotiation between Client B and Party C, but the lawyer learned it during the course of that representation. Client B would con-sider the public disclosure of this infor-mation embarrassing because Client B has a self-professed gambling problem. While Client B did not provide the information to lawyer, she learned it from Party C and concludes the infor-mation constitutes a client secret. She determines that she cannot undertake the representation of the Prospective Client A, the criminal defendant, because of Rule 1.7(b)(4). However, other lawyers at the firm could represent Prospective Client A provided that they do not pos-sess, or have access to, the client secret the lawyer learned during the repre-

sentation of Client B in the business negotiation.24

First, on its face, Rule 1.10 does not automatically impute to other lawyers in the firm knowledge of Rule 1.6 con-fidential or secret information known to another lawyer at the firm who are not or were not involved in the client’s matter, providing instead a functional analysis. Comment [9] to Rule 1.10 (which deals with lawyers moving between firms) explains that a conclusive presumption that all partners in a law firm have access to all client confidences might properly apply if the client is extensively repre-sented but may be unrealistic if the client is represented only for limited purposes. Rule 1.10 imputes only actual conflicts under Rule 1.7(a), (b)(1) through (b)(3), and Rule 1.9, but expressly carves out conflicts arising under Rule 1.7(b)(4). This analysis is reinforced by Rule 1.10(c), which provides that when a law-yer leaves a firm, the firm is not there-after prevented from taking on matters adverse to a client formerly represented by the departed lawyer unless (1) the prospective matter is the same as or substantially related to the prior matter, and (2) another lawyer at the firm has information protected by Rule 1.6 that is material to the matter.

Second, given the importance of attor-ney-client confidentiality established by Rule 1.6, the Committee concludes that Rule 1.3 (Diligence and Zeal)—does not require a law firm to canvass confiden-tial or secret Rule 1.6 information of all of its clients to fulfill the professional responsibility of one of its lawyers in his or her attorney-client relationship with any particular client. To the contrary, Rule 1.6 establishes an ethical mandate not to use or disclose the confidences and secrets of clients or former clients. When Rule 1.3(a) requires zealous and diligent representation within the bounds

of the law, harvesting one client’s con-fidences for another client’s benefit is not required because it is outside those bounds. Similarly, Rule 1.3(b) forbids a lawyer’s failure “to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules.” Consequently, in the Committee’s view, there is no duty on one lawyer in a law firm representing Client A to obtain and use or disclose another lawyer’s confidential or secret information of Client B about which the first lawyer is unaware.

Example. A lawyer represented a cli-ent-landlord in an eviction case. Years later, the same lawyer represents a plain-tiff adverse to the landlord in an auto-mobile accident personal injury case. The matters are not factually related, and there is no “risk that confidential information as would normally have been obtained in the prior [eviction] represen-tation would materially advance the cli-ent’s position in the subsequent matter.” Comment [3] to Rule 1.9. But the lawyer remembers that the landlord comment-ed during a meeting about the eviction that he carried no automobile insurance because it just encouraged people to sue, and he preferred to take his chances against greedy plaintiffs.

While details on automobile insur-ance are not the type of confidential information typically obtained in an eviction matter, they nevertheless con-stitute a protected “secret” under Rule 1.6. The lawyer learned of the landlord’s automobile insurance practice in the course of representing the landlord and the lawyer’s revelation of that informa-tion is embarrassing, or likely detrimen-tal to the landlord. The lawyer could not report the information to the later plaintiff-client as they assess strategy for the accident case, nor should the lawyer use the information during strat-egy development. The lawyer cannot fulfill her duty to communicate with the plaintiff or zealously use her own memory to develop a competent strat-egy. Thus, the lawyer has a Rule 1.7(b)(4) conflict.25 At the same time, how-ever, the information and the subject matters of the two cases do not create a Rule 1.9 conflict, and another lawyer in the same law firm—not burdened by the memory of the first lawyer and screened from information about the eviction rep-

(3) use a confidence or secret of the lawyer’s cli-ent for the advantage of the lawyer or of a third person.”

Rule 1.6(g) explains: “The lawyer’s obligation to preserve the client’s confidences and secrets continues after termination of the lawyer’s employ-ment.”

24 Altering the facts of this example highlight the importance of distinguishing conflicts arising under Rules 1.7(b)(2) or (b)(3) —and subject to imputation under Rule 1.10(a)—from those arising under Rule 1.7(b)(4) and not subject to imputation. Under certain circumstances, the fact that Witness and Client B were playing poker at a casino in Las Vegas on a particular date/time might be material to the lawyer’s representation of Client B in the business negotiation with Party C. For example, if the financial transaction that is the subject of the negotiation required Client B to make certain rep-resentations and warranties that implicate gambling issues, the lawyer’s representation of Prospective Client A would give rise to a conflict under Rule 1.7(b)(2) or 1.7(b)(3). Under these circumstances, the lawyer’s conflict is imputed to the entire firm and would preclude the firm’s representation of Prospective Client A.

25 If this had been a Rule 1.7(b)(2) or (b)(3) conflict (if the landlord/eviction matter is a current matter), the conflict would be imputed to other law-yers at the firm under Rule 1.10(a).

438 THE DISTRICT OF COLUMBIA BAR February 2021

resentation—can develop and commu-nicate strategy competently, diligently, and zealously without ethical constraint.

The Committee therefore concludes that Rule 1.10 imputed disqualifica-tion applies, as the Rule states, to Rule 1.7(a), (b)(1) through (b)(3) and Rule 1.9 conflicts, but does not extend to Rule 1.6 duties and information without more. This conclusion is consistent with Legal Ethics Opinion 237, which concluded:

An attorney may represent a defendant in a criminal case, even though anoth-er attorney in his or her office for-merly represented an individual who is now a witness in that case if (1) the agency’s representation of the person who is the witness was in an unre-lated case; (2) the attorney involved in the current case does not actually possess any confidences or secrets of the former client; and (3) the agency takes adequate steps to screen that attorney from any such confidences and secrets.”

The Committee also referenced then Comment [11] (now Comment [12]) to Rule 1.10, which discusses lawyers’ access to information about law firm clients:

Access to information . . . is essentially a question of fact in particular circum-stances, aided by inferences, deductions, or working presumptions that reasonably may be made about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly par-ticipate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm’s clients. In contrast, another lawyer may have access to the files of only a limited number of clients and participate in discussion of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients.

Comment [12] to Rule 1.10. In between these two examples are end-less other examples. In the Commit-tee’s view, in any given example, inferences may or may not be rea-sonable. More importantly, the focus of Opinion 237 should remain the principal inquiry: whether the particu-lar attorney “actually possesses any confidences or secrets of the former client” that were material to the former client’s representation.

F. Suggestions Regarding Conflict-of- Interest Issues Related to Witnesses

The Committee suggests the following considerations to help identify, prevent, and resolve conflict-of-interest issues related to witnesses.■ To facilitate early identification of

potential conflicts of interest involv-ing witnesses, a lawyer could consider including the names of potential wit-nesses (including experts) and other sources of facts in conflict checks26 and then supplementing checks as additional names arise.27 Depending on the size of a law firm, it might circulate conflict checks to lawyers in addition to database checking, and it could encourage lawyers to review checks regularly.28

■ To facilitate resolution of potential con flicts of interest related to wit-nesses, a lawyer, in advance of issu-ing a subpoena, might attempt to discuss it with the client-witness, assuming such discussion would not violate the Rule 1.6 interests of the client-party. The discussion could include the suggestion that the cli-ent-witness consult with independent counsel.

■ More generally, advance waivers of conflicts of interest relating to discovery or other witness-related issues could be discussed with pro-spective-clients at the beginning of attorney-client relationships. As explained in Comment [31] to Rule 1.7, advance waivers are permis-sible only if the prerequisites of the rule – namely “full disclosure of the existence and nature of the possible conflict and the possible adverse

consequences of such representa-tion” – are satisfied.29

■ Regarding potential client-parties, a lawyer could discuss the use of scope limitations and/or engagement of con-flicts counsel to take discovery from, or to cross-examine, other clients of the lawyer to avoid conflicts of interest.30

■ Joint representations sometimes devel-op witness conflicts, which might be addressed by advance agreements and consents. For example, joint clients could agree to maintain confidentiality of jointly shared facts and advice. They also might agree in advance to proce-dures for addressing downstream con-flicts, including whether an unwaived conflict would require the lawyer’s withdrawal from the representation of all or only some of the joint clients. Advance agreements also sometimes address how client information would be handled after withdrawal.

■ In any organizational setting Upjohn warnings should be given to employ-ees to avoid inadvertent creation of attorney-client relationships that could create conflicts.31

* * * *Obtaining information from current-

or former-client witnesses often gives rise to a variety of considerations. These issues might involve conflicts of interest pursuant to Rules 1.7 and 1.9, as well as considerations under Rule 1.6 and Rule 1.10. The opinion offers mechanisms for identifying, preventing, and resolving such conflicts while safeguarding confi-dentiality and remaining mindful of rules on imputation.

Published February 202126 See, e.g., New York Rule of Professional

Conduct 1.10(e).

27At the beginning of litigation, it is often impossible to identify all potential adverse wit-nesses. D.C. Rule 1.7(d) regarding “thrust upon” conflicts applies a “reasonably foreseeable” stan-dard to all conflict issues, including those involving witnesses. If an adverse witness were not identified and were not “reasonably foreseeable” at the begin-ning of a litigation engagement, then even if the witness were a current client of the trial lawyer, an adverse cross-examination of the witness might be permitted under the D.C. Rule. We also note, how-ever, the ABA Model Rules do not include a Rule similar to D.C. Rule 1.7(d). “Conflicts counsel,” as defined in note 11 above, are often utilized to address thrust upon conflicts that arise at trial.

28 See Comment [19] to Rule 1.7 (explaining that the “test to be applied here [to determine poten-tial conflicts] is one of reasonableness and may turn on whether the lawyer has an effective conflict checking system in place”).

29 See also Comment [32] to Rule 1.7 (“Rule 1.7(a) provides that a conflict arising from the lawyer’s advancing adverse positions in the same matter cannot be waived in advance or otherwise.”);

D.C. Legal Ethics Opinion 309 (explaining that advance waivers of conflicts of interest must com-ply with the overarching requirement of informed consent). Accord N.Y. City Bar Opinion 2005-5.

30 See, e.g., N.Y. City Bar Opinions 608 (2011) and 2017-6; ABA Formal Opinion 92-367.

31 Upjohn v. United States, 449 U.S. 383 (1981). See also Rule 1.13(c) (“In dealing with an organi-zation’s directors, officers, employees, members, shareholders, or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization’s interests may be adverse to those of the constituents with whom the lawyer is dealing.”) and Comments [9] and [10] to Rule 1.13.

February 2021 THE DISTRICT OF COLUMBIA BAR 439

Opinion 381

Responding to Third-Party Subpoena

Introduction

A lawyer’s representation of a prospec-tive client in responding to a third-party subpoena that seeks documents, tangible things, property, or testimony1 (“Infor-mation”) about a lawyer’s existing client does not create a conflict of interest unless the lawyer’s representation of either the prospective client or the client will be, or likely will be, adversely affected.2 A lawyer’s representation of a prospec-tive client in responding to a third-party subpoena that seeks Information about a lawyer’s former client does not create a conflict of interest unless the subpoena matter is the same or substantially related to the lawyer’s former representation and the interests of the prospective client and former client are adverse.

Applicable Rules• Rule 1.0 (Terminology)• Rule 1.1 (Competence)• Rule 1.3 (Diligence and Zeal)• Rule 1.6 (Confidentiality of

Information)• Rule 1.7 (Conflict of Interest: General

Rule)• Rule 1.9 (Conflict of Interest:

Former Client)• Rule 1.10 (Imputed Disqualification:

General Rule)

Discussion

In this opinion, the Committee consid-ers whether a lawyer’s representation of a client in responding to a third-party subpoena for Information that identifies specific parties by name (the “Prospec-tive Client”) creates a conflict of interest if the lawyer also represents or represent-ed one of the named persons (the “Other Client”) in unrelated matters.3

1. Current Client Conflict of Interest

Typically, a lawyer may represent a Prospective Client, even if the Informa-tion sought relates to another client of the lawyer, without triggering a conflict under Rule 1.7(b).

Pursuant to D.C. Rule 1.7(b), a lawyer shall not represent a client in a matter if:

(1) That matter involves a specific party or parties and a position to be taken by that client is adverse to a position taken or to be taken by another client in the same matter even though that client is unrepresented or represented by a dif-ferent lawyer;

(2) Such representation will be or is likely to be adversely affected by repre-sentation of another client;

(3) Representation of another client will be or is likely to be adversely affect-ed by such representation; [or]

(4) The lawyer’s professional judg-ment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or inter-ests in a third party or the lawyer’s own financial, business, property, or personal interests.4

A. Assessing Conflicts at the Outset of the Representation

A lawyer is required to assess conflicts on each proposed engagement at the out-set of the representation.5 Such assessment includes undertaking reasonable diligence concerning the subpoena. In assessing possible conflicts before undertaking the representation of the Prospective Client, a lawyer should consider the particulars of the proceeding out of which the subpoena issued and the information contained in the subpoena itself, including the time period, the scope of information sought, and the names of persons identified and their connection to the information sought. Whether additional diligence would be required is a question of fact and varies by the circumstances. For example, under certain circumstances, it might be neces-sary for the lawyer to review publicly available information or consult with the Other Client as part of the additional dili-gence effort.

Ordinarily, direct adversity will not exist between the interests of the Pro-spective Client and the Other Client because the issuer of the subpoena, not the subject of the subpoena, is adverse to the Prospective Client and a testimonial or documentary response by the Prospec-tive Client does not constitute taking any “position” with respect to any of the sub-jects of the subpoena. Rather, the focus of the Prospective Client – and therefore the scope of the lawyer’s representa-tion – is the legality and propriety of the subpoena and the respondent’s posting of proper objections to requests for produc-tion by the issuer of the subpoena.

The lawyer’s representation of the Pro-spective Client may, however, create a conflict of interest if the representation of that client would likely adversely affect, or be adversely affected by, the repre-sentation of another client or personal interests of the lawyer. However, Rules 1.7(b)(2)-(4) do not obligate lawyers to assess the possibility of conflicts based upon rank conjecture and speculation but, rather, only to determine, based upon a reasonable objective belief, that certain facts will develop that would create a substantial risk that the lawyer’s representation of a client will adversely affect or be adversely affected by ethical obligations to another client, former cli-ent, or herself.6

A few hypothetical examples may help to illustrate the applicable conflicts stan-dard. Suppose a lawyer is asked to rep-resent a hospital in producing medical records of a patient in response to a third-party subpoena issued by an insurance company in a vehicular personal injury matter. The parties to the litigation are the at-fault driver’s insurance company and the injured party, who is a client of the lawyer in a custody matter.7 In repre-senting the hospital, the lawyer would be advising it on the scope of the subpoena, any deficiencies, and any objections, including, for example, the relevance and responsiveness of any documents of the injured party (Other Client) in the hospi-tal’s possession.

1The reference to documents, physical things, property, or testimony in this Opinion is intended to incorporate the same terms and definitions as contained in Federal Rule of Civil Procedure 34.

2This Opinion does not address instances where the lawyer is the recipient of a third-party subpoena for his or her own records or for the records of the lawyer’s firm. See D.C. Legal Ethics Opinion 288 (1999).

3A lawyer reviewing a subpoena that does not specify names, but only a certain time period, will ordinarily be unable to identify a conflict at the out-set of the representation, but might become aware of one after commencement of the representation. See section 1.B. infra.

4D.C. Rule 1.0(h) defines “matter” broadly to mean “any litigation, administrative proceeding, lobbying activity, application, claim, investiga-tion, arrest, charge or accusation, the drafting of a contract, a negotiation, estate or family relations practice issue, or any other representation, except as expressly limited in a particular rule.” Rule 1.0 (h).

5Rule 1.7 and Comments [7], [19], and [29].

6See Rule 1.7 Comments [7], [9], and [19]. See also D.C. Legal Ethics Opinion 356 (2010) (“a conflict must be clear, specific and not based on mere speculation.”); Rule 1.7(d) (the standard is “reasonably foreseeable” when assessing whether a conflict could have been anticipated at the outset of the representation).

7The Committee does not see any meaningful distinction in the conflicts analysis if the request for production of medical records is in the form of a pre-complaint letter request rather than a subpoena issued out of litigation.

440 THE DISTRICT OF COLUMBIA BAR February 2021

At the outset of the representation, the lawyer does not know the contents of the medical records, and the lawyer’s review of the complaint does not provide any more information about what the medical records of the hospital might reveal. Typ-ically, the lawyer may therefore under-take the hospital representation without it creating a Rule 1.7 conflict of inter-est. The mere possibility that responsive medical records of the hospital that might undermine the injured party’s claim exist and are produced does not give rise to a conflict of interest. There may be cir-cumstances, however, where the lawyer’s knowledge about the facts surrounding the subpoena request and its implications might necessitate the lawyer’s consulta-tion with the Other Client (subject of the subpoena) to properly assess conflicts of interest before undertaking the engage-ment by the Prospective Client.8

Suppose that the lawyer knows through and in the course of representing the Other Client in the custody case that the Other Client has been unable to honor the temporary custody schedule because of injuries sustained from athletic activities. As a result of the custody matter, the law-yer has in her possession medical records from the hospital during the relevant subpoena time period reflecting those injuries. Given the lawyer’s knowledge about the cause of the injuries docu-mented in the medical records, undertak-ing the prospective representation might well create a conflict of interest under Rule 1.7(b)(2) or (b)(3) or under Rule 1.7(b)(4) with the personal interest of the lawyer herself.

The Committee concludes that to deter-mine whether a conflict of interest exists in undertaking the prospective engage-ment, the lawyer must assess whether the lawyer knows,9 after performing rea-sonable diligence in evaluating the sub-poena request as described above, that the Prospective Client possesses respon-sive information that, if produced, is or likely will be adverse10 to the subject of the subpoena (the Other Client).11 If so,

then the lawyer must assess whether that knowledge will likely adversely affect the lawyer’s representation of either cli-ent. If it likely will, a Rule 1.7(b)(2) or (3) conflict exists.

If neither representation is likely to be adversely affected or the lawyer does not know in the first instance that the Prospective Client possesses responsive information that is likely to be adverse to the Other Client, the lawyer must nonetheless consider whether the lawyer has a personal conflict under Rule 1.7(b)(4). That is, the lawyer must determine in undertak-ing the prospective matter whether the lawyer’s professional judgment will or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own interests.12

A lawyer who concludes at the out-set of the representation that undertak-ing the new engagement would create a Rule 1.7(b) conflict with the Other Client could still represent the Prospec-tive Client if the lawyer satisfies Rule 1.7(c)’s requirements that the lawyer obtain the informed consent from each affected client and reasonably believes that she can provide competent and diligent representation to each client.13 A crucial initial consideration in this regard is whether the disclosure of the requisite information necessary to secure the informed consent of either the Prospective Client or the Other Client would violate the lawyer’s Rule 1.6 duty to protect the confidences and secrets of

each.14 If so, then the lawyer could nei-ther seek nor obtain informed consent and, as such, the lawyer would have to decline the prospective representation because the lawyer could not satisfy the Rule 1.7(c)(1) requirement.

If informed consent could be sought and were obtained, under Rule 1.7(c)(2), the lawyer must also undertake both a sub-jective self–assessment and an objective analysis to determine whether, notwith-standing the clients’ informed consent, the lawyer will be able to “provide competent and diligent representation” to each client. That assessment would include consid-eration of whether the lawyer might pull punches during the new representation either out of concern over the impact on the lawyer’s representation of the Other Client,15 or because of the lawyer’s own personal, financial or other interests.16

By way of further illustration, suppose a lawyer is asked to represent a bank that has received a Department of Justice sub-poena for records of a party it is investi-gating for bribing a government official. News reports indicate that the subject of the investigation is a close personal friend of the government official and also a business person whose business seeks zoning approval and a building permit within the jurisdiction of the government official. The business is a long-standing client of the lawyer, which has gener-ated substantial fees for the lawyer over time. The lawyer currently represents the business in litigation alleging breach of a commercial contract. The lawyer does

8See, e.g., Comment [19] to Rule 1.7.

9Rule 1.0(f) defines “knowledge” or “knows” as “actual knowledge of the fact in question,” which “may be inferred from the circumstances.”

10Whether or not information known to the law-yer is “adverse” or “harmful” is left to the reason-able judgment of the lawyer.

11While Rule 1.3(b)(2) provides that “[a] lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship,” the act of producing responsive information on behalf of another client that might be harmful to a

lawyer’s client does not run afoul of Rule 1.3(b)(2) because it is not in the matter in which the lawyer represents the client and “Rule 1.3 is not meant to govern conflicts of interest, which are addressed by Rules 1.7, 1.8, and 1.9.”

12See Rule 1.7(b)(4) infra as quoted in the body of the Opinion.

13Rule 1.0(e) defines informed consent as “the agreement by a person to a proposed course of con-duct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably alternatives to the proposed course of conduct.” Such required “information and explanation” varies by circumstances and is subject to a variety of factors, including the sophistica-tion, vel non, of the person granting the informed consent.

Rule 1.7(c) provides that a lawyer may rep-resent a client notwithstanding a conflict if “(1) each potentially affected client provides informed consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such rep-resentation; and (2) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client under the circumstances.”

14Moreover, pursuant to Rule 1.18(b), “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as permitted by Rule 1.6.” Thus, the duty of confidentiality owed to a prospec-tive client is coextensive with the duty owed to an actual client. In some instances, the mere fact of the representation or prospective representation may constitute a Rule 1.6 secret, further potentially complicating the ability of the lawyer to obtain the requisite informed consent.

15As explained in D.C. Legal Ethics Opinion 380 (2021), “‘Punch pulling’ is a boxing term that refers to a fighter purposefully hitting his adversary with less than full force – as if the fighter pulled back a punch before making contact. In the profes-sional responsibility context, a punch pulling con-flict refers to circumstances where a lawyer is less zealous in advocating for, or advising, a client out of concern over the impact on the lawyer’s representa-tion of another client.”

16See Rules 1.1, 1.3, and 1.7(c)(2) and see, e.g., comment [7] (“The underlying premise is that dis-closure and informed consent are required before assuming a representation if there is any reason to doubt the lawyer’s ability to provide wholehearted and zealous representation of a client….”).

February 2021 THE DISTRICT OF COLUMBIA BAR 441

not know at the outset of the prospective representation whether the bank pos-sesses records reflecting payments from the business person to the government official, but the bank suspects that there might be some payments because of the frequency with which both transact at the bank and the time period involved.

While the lawyer does not have actual knowledge that the bank possesses any responsive documents damaging to the business person, nor does the lawyer represent the business person personally in a matter, the lawyer’s long-standing and substantial professional relation-ship with the business might prevent the lawyer from providing competent and diligent representation to the bank. For example, the lawyer might be overzeal-ous in raising objections to production of the potentially damaging documents because they might adversely affect the principal of a long-standing and lucrative client, when the bank does not have any concerns about the production other than its own cost. Under these circumstances, the bank representation could create a personal conflict of interest for the law-yer. Barring a problem with the lawyer’s ability to provide competent and diligent representation to each client, without the lawyer’s actual knowledge that certain information harmful to the interests of the subject of the subpoena exists and is responsive, the mere possibility that documents responsive to the subpoena exist that are, or might be, adverse to the interests of the business person or the lawyer’s Other Client, the business, and might be produced, is purely speculative.

Even if it later develops that the law-yer’s speculation about the potentially damaging nature of the information pro-duced results in the evidence being used adversely against the business, the sub-sequent factual confirmation of the law-yer’s speculation would not change the analysis.17 The production of Information adverse to a particular client would be an “unwitting” side effect of the representa-tion of the Prospective Client, and not the lawyer’s attempt to seek a result for the Prospective Client “to which another client is opposed.”18 Nor would it be con-sidered in hindsight to have been a Rule 1.7(b)(2) or (b)(3) conflict.

As discussed, although typically there is no ethical requirement that a lawyer disclose the prospective representation of a subpoenaed third-party to the Other Client (who is the subject of the sub-

poena), it might nonetheless be prudent for the lawyer to notify the Other Client of the prospective engagement – barring any Rule 1.6 (Confidentiality of Infor-mation) issues. The consultation could permit the Other Client an opportunity to voice concerns about the lawyer’s repre-sentation of the Prospective Client under the circumstances.

B. Discovery or development of a con-flict after commencement of the rep-resentation of the Prospective Client

If the lawyer undertakes the repre-sentation of the Prospective Client, a conflict under Rule 1.7(b)(2), (b)(3), or (b)(4) may nevertheless arise after the representation commences if the law-yer’s discovery of potentially damag-ing information, prior to its production, might adversely affect the lawyer’s abil-ity to competently and diligently repre-sent either the Prospective Client or the Other Client.19

Returning to the first example of the third-party subpoena to the hospital by an insurance company in a vehicular personal injury matter where the lawyer also represents Other Client in a custody matter but does not possess knowledge of the Other Client’s medical issues: suppose after reviewing the medical records of the hospital for the Prospec-tive Client for responsiveness and privi-lege, the lawyer discovers a note in the medical records that undermines, or would seem to undermine, the patient’s injury claim. Suppose further that the note reflects that the patient disclosed that he had participated in sports activi-ties around the time of the accident and that such sports activities could have produced the same injuries being attrib-uted to the accident.

As the lawyer learns information dur-ing the course of the third-party sub-poena representation, through reviewing documents, discussions with the client, or otherwise, the lawyer might learn information prior to production that is

harmful to the Other Client and might also conclude that such information is responsive to the subpoena. Under such circumstances, continuing to represent the Prospective Client might adversely affect, or be adversely affected by, rep-resentation of the Other Client.20 Or, the lawyer might conclude that there is a per-sonal conflict pursuant to Rule 1.7(b)(4) because the lawyer’s professional judg-ment on behalf of the subpoenaed client will be or reasonably may be adversely affected by her responsibilities to a third party or by her own interests. Whether continuing the Prospective Client repre-sentation is a conflict of interest under Rules 1.7(b)(2) – (b)(4) is a matter of degree and a question of fact, which turns on whether a reasonable lawyer would conclude that there would be a diminu-tion in the quality of the representation of either the Prospective Client or the Other Client.

Should the lawyer conclude in the affirmative, he or she must assess whether the conflict is consentable and if so, seek informed consent from each affected client.21 Such informed con-sent could be sought in advance in the engagement terms or sought contem-poraneously.22 If the lawyer concludes that she may not seek informed consent, either because the lawyer reasonably concludes that she would be unable to provide competent and diligent repre-sentation to each affected client given the nature and degree of the conflict, or because confidentiality obligations prevent her from disclosing informa-tion sufficient to obtain informed con-sent, she may retain conflicts counsel to address that portion of the representa-tion if the client agrees and the retention is otherwise consistent with the Rules.23

17See D.C. Legal Ethics Opinion 356 (2010).

18See Rule 1.7, Comment [19].

19Because of the nature of the third-party rep-resentation, a conflict of interest will not typically arise under Rule 1.7 (b)(1) because, as stated previ-ously, raising objections to a subpoena or providing responsive documents is not adverse to the subject of the subpoena (the Other Client) but, rather, is adverse to the issuer of the subpoena. In the unusual circumstance that a Rule 1.7(b)(1) conflict arises in connection with responding to a third-party subpoena, the conflict might be considered under the “thrust upon” scenario pursuant to Rule 1.7(d). D.C. Legal Ethics Opinion 356 might also be instructive in this regard. But, see, footnote 22 infra.

20See Rule 1.7(b)(2) or (b)(3).

21See Rule 1.7(c) and Rules 1.1 and 1.3.

22While advance waivers of conflicts of inter-est are permissible under certain circumstances, they are more susceptible to failing the informed consent standard than contemporaneous consents. See Rule 1.7, Comment [31]. See also D.C. Legal Ethics Opinion 309 (2001) (“The less specific the circumstances considered by the client and the less sophisticated the client, the less likely that an advanced waiver will be valid.”). A client may also revoke valid consents. D.C. Legal Ethics Opinion 317 (2002).

23“Conflicts counsel” has the same definition as set forth in endnote 11 of D.C. Legal Ethics Opinion 380 (2021). (“‘Conflicts counsel’ is the designation generally applied to the retention of a lawyer from a different firm engaged solely to represent the client on the discrete, severable aspect of the matter that gave rise to the conflict.…”).

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Otherwise, the lawyer must withdraw from the representation.24

2. Former Client Conflict of Interest

A lawyer’s representation of a Pro-spective Client to produce documents or give testimony that might include infor-mation adverse to the interests of a for-mer client might constitute a conflict of interest if the prospective engagement is “the same or a substantially related mat-ter in which [the Prospective Client’s] interests are materially adverse to the interests of the former client unless the former client gives informed consent.”25 The purpose of Rule 1.9, the former client conflicts rule, is twofold: first, to prevent “side-switching” and, second, to protect confidential factual information gained through or in the course of the prior representation from being used to the former client’s detriment in the cur-rent representation.26

Side-switching occurs when parties are materially adverse to each other in a sub-sequent substantially related matter and the former client’s lawyer begins repre-senting a client in a matter adverse to the former client’s interests.27 In connection with a subpoena request, when a lawyer represents the Prospective Client either in a matter that is not adverse to the former client (subject of the subpoena) or in a matter that is not the same as nor substan-tially related to the matter in which the

lawyer formerly represented the Other Client, the prohibition on side-switching is not implicated.

With respect to client confidences, the rule focuses on the risk that the former client’s confidential information may be used to benefit another client in a subsequent representation to the former client’s detriment. The rule assures the former client that information confided to the lawyer will not be used by the lawyer against the former client in a subsequent matter without the former cli-ent’s consent. The rule does not concern the possibility that some other party may later have information detrimental to the former client.28 In that circumstance, the lawyer is able to represent the Prospec-tive Client to respond to a third-party subpoena involving the former client without running afoul of Rule 1.9.

Conclusion

A lawyer’s representation of a Pro-spective Client does not create a conflict of interest unless: (1) the lawyer knows, after performing reasonable diligence in evaluating the subpoena request, that the Prospective Client possesses respon-sive information that, if produced, is or likely will be adverse to the Other Client, and such knowledge likely will adversely affect the lawyer’s representa-tion of either client; or (2) the lawyer’s professional judgment will or reasonably may be adversely affected by the law-yer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or other interests as a result of the prospective engagement. Reasonable diligence prior to undertak-ing the new engagement includes con-sidering the particulars of the proceeding out of which the subpoena issued and the information contained in the sub-poena itself, including the time period, the scope of information sought, and the names of persons identified and their connection to the information sought. It might also include review of publicly available information or consultation with the Other Client depending on the knowledge of the lawyer concerning the circumstances surrounding the subpoena request and its implications. Whether additional diligence would be required is a question of fact and varies by the circumstances.

A lawyer who undertakes a represen-tation of a Prospective Client having concluded that there was not a conflict at the outset of the representation and who, despite reasonable diligence, does not discover a conflict throughout the engagement, has not violated Rule 1.7 if responsive Information produced is sub-sequently used by another party in a man-ner that is damaging to the Other Client.

However, if a lawyer discovers Infor-mation potentially damaging to the Other Client during the course of the Pro-spective Client engagement and prior to production, the lawyer must assess from both an objective and subjective perspec-tive whether the lawyer’s ability to com-petently and diligently represent either the Prospective Client or the Other Client might be comprised. If such Information readily appears to be, or reasonably will be, damaging to the lawyer’s Other Cli-ent (not speculatively), then it is a con-flict that develops after commencement of the engagement, for which informed consent from each affected client would be required. If informed consent is not obtained, then conflicts counsel would have to be retained, if permissible, or the lawyer must withdraw.

Finally, a lawyer’s representation of a prospective client in responding to a third-party subpoena that seeks Informa-tion about a lawyer’s former client does not create a conflict of interest unless the subpoena matter is the same as or sub-stantially related to the lawyer’s former representation and the interests of the prospective client and former client are adverse.

Published February 2021

24Rule 1.7(d) will typically not be available to a lawyer who concludes that a conflict has arisen during a representation in this context because a conflict arising under Rule 1.7(b)(2)-(4) is not consentable under Rule 1.7(d). As to withdrawal, see Rule 1.16 (Declining or Terminating Repre-sentation).

25Rule 1.9 states: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substan-tially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed con-sent.”

26See Rule 1.9, Comments [2] and [3]; D.C. Legal Ethics Opinion 272 (1997) (“purpose of the rule is to assure the preservation of attorney-client confidences gained in the prior representation and to preserve the reasonable expectations of the former client that the attorney will not seek to benefit from the prior representation at the expense of the former client”); and Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc).

27Cf, Rule 1.9, Comment [2]: “[A] lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.”

28See Rule 1.9, Comment [3]: “Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying.”