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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


District of Columbia Legal Ethics

1.2   Rule 1.2 Scope of Representation

1.2:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 1.2
· Background References: ABA Model Rule 1.2, Other Jurisdictions
· Commentary:

1.2:101      Model Rule Comparison

Except for the insertion of a paragraph (d) and consequent relettering of two other paragraphs, DC Rule 1.2 was, prior to 2002, identical to Model Rule 1.2. Paragraph (d) of the DC Rule is a provision, not in the Model Rules, recognizing that a government lawyer's authority and control over decisions concerning the representation may, by statute or regulation, be expanded beyond the limits imposed by paragraphs (a) and (c). This additional paragraph was a recommendation of the Sims Committee [see 0.1:103, above]. As a result of the inclusion of paragraph (d), paragraphs (d) and (e) of the Model Rule became paragraphs (e) and (f) of the DC Rule.

The Ethics 2000 Commission recommended and the ABA adopted a number of changes both to the Model Rule and, particularly, to its Comments, but the DC Rules Review Committee recommended, and the Court of Appeals adopted, just two of the ABA's changes to the Rule and one of its changes to the Comments.  In paragraph (a) of the DC Rule, a new second sentence was added, making clear that a lawyer can take actions for the client that are impliedly authorized to carry out a representation, and in paragraph (c), "gives informed consent" replaced "consents after consultation."  Comment [7] to the DC Rules was changed in exactly the same fashion as the corresponding Comment to the Model Rule (now renumbered as Comment [10]). In addition, a new final sentence was added to Comment [4] of the DC Rule, referring to Rule 1.5(b) and the desirability of explaining in writing any limits on the objectives or scope of the lawyer's services. (The report of the Rules Review Committee does not explain the reason for the latter change.)

It should be noted that DC Rule 3.3 contains, in subparagraph (a)(2), a provision identical in substance to DC Rule 1.2(e): see 3.3:101, below.

1.2:102      Model Code Comparison

Paragraph (a) of the Rule has no direct counterpart in the Model Code. It reflects, however, the themes of two Ethical Considerations and a related Disciplinary Rule of the Code. EC 7-7 provided: "In certain areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of the client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client." EC 7-7 included examples of decisions that rest with the client: "[I]t is for the client to decide whether he will accept a settlement offer," and in criminal cases, "it is for the client to decide what plea should be entered and whether an appeal should be taken." Providing greater detail regarding client consultation than does paragraph (a) of Rule 1.2, EC 7-8 stated: "A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations." DR 7-101(A)(1) provided that a lawyer "shall not intentionally . . . fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules." Paragraph (b) of the Rule has no counterpart in the Model Code.

Paragraph (c) has several Model Code antecedents. DR 7-101(B)(1) provided that "a lawyer may . . . where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client." DR 7-101(B)(2) permitted a lawyer to "refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an argument that the conduct is legal." EC 7-8 also addressed a lawyer's possible desire to place limits on the relationship: "In the event that the client in a non-adjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the employment." And EC 7-9 asserted that, "when an action in the best interest of his client seems to him unjust, [the lawyer] may ask his client for permission to forego such action."

Paragraph (d) of the DC Rule had no direct counterpart in the Model Code. However, EC 7-11 recognized that "[t]he responsibilities of a lawyer may vary according to . . . the obligation of a public officer." Examples included "service as a public prosecutor or other government lawyer."

Paragraph (e) reflects a variety of Model Code provisions, most directly DR 7-102(A)(7), which provided that a lawyer shall not "counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." DR 7-102(A)(6) provided that a lawyer shall not "participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false." DR 7-106(A) directed a lawyer not to "advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal . . . but he may take appropriate steps in good faith to test the validity of such rule or ruling." EC 7-5 added that a lawyer "should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor."

Paragraph (f) of DC Rule 1.2 provides a more flexible approach than DR 2-110(C)(1)(c), which provided that a lawyer may withdraw from representation if a client "insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules." DR 9-101(C) also provided that "a lawyer shall not state or imply that he is able to influence improperly . . . any tribunal, legislative body or public official."

1.2:200   Creating the Client-Lawyer Relationship

· Primary DC References: DC Rule 1.2
· Background References: ABA Model Rule 1.2, Other Jurisdictions
· Commentary: ABA/BNA § 31:101, ALI-LGL §§ 14, 18, Wolfram § 9.2

1.2:210      Formation of Client-Lawyer Relationship

"The existence of an attorney-client relationship is an issue to be resolved by the trier of fact and is predicated on the circumstances of each case." In re Lieber, 442 A.2d 153, 156 (DC 1982). Lieber had placed his name on a roster of volunteer lawyers willing to provide legal assistance to eligible inmates in pro se civil actions. He was subsequently assigned to represent an inmate but failed to enter an appearance after receiving notice from the court as well as phone calls from the inmate. As a defense to charged ethical violations arising out of his failure to appear in the case, Lieber claimed that he had never established an attorney-client relationship with the inmate. He stated, among other things, that he never accepted a fee and did not give legal advice to the inmate. The Court rejected Lieber's defense, observing that "[i]t is well established that neither a written agreement nor the payment of fees is necessary to create an attorney-client relationship." Id. Furthermore, the Court stated that a relationship can be formed even when the lawyer does not take any substantive action or gave any legal advice. Id. Also important in determining the existence of a relationship is the client's perception of the lawyer as his counsel. See id. On the facts of the case, particularly the fact that Lieber voluntarily placed his name on the roster, the court concluded that an attorney-client relationship had been formed. Id.

The risk of a lawyer's inadvertently establishing a lawyer-client relationship by providing advice through a "chat room" or "listserv" on the internet is discussed in DC Ethics Opinion 310 (2002) (more fully discussed under 7.1:200, below). It is also treated in DC Ethics Opinion 319 (2003) (more fully discussed under 1.8:220 below), which addressed the ethical propriety of a lawyer's purchasing a legal claim from a non-lawyer. That Opinion pointed out the risk that a non-lawyer in such circumstances might reasonably believe that the lawyer's statements about the value of the claims were made with an expectation that the non-lawyer might rely on them, thus establishing a lawyer-client relationship. The Opinion cited in this connection Nelson v. Nationwide Mortgage Corporation, 659 F. Supp. 611, 617-18 (D.D.C. 1987), holding that a borrower who had executed loan and mortgage documents in reliance on statements made by the lender's lawyer at the loan closing could sue the lawyer for malpractice by demonstrating that her "reliance was both reasonable and foreseeable." Id. at 618.

In In re Russell, 424 A.2d 1087 (DC 1980), the Court upheld a determination by the Board on Professional Responsibility that a lawyer-client relationship was formed when the lawyer agreed to help a co-worker recover damages for an injury the co-worker had suffered. The fact that there was no written agreement did not alter the finding that the relationship had been established, where the lawyer had repeatedly represented that "negotiations were on-going," id. at 1087, and had obtained a "nuisance value" settlement offer. Id. at 1088.

In contrast, the court in Farmer v. Mount Vernon Realty, Inc., 720 F. Supp. 223 (DDC 1989), aff'd sub nom. Fox v. Begg, Inc., 983 F.2d 298 (DC Cir 1993), held that, on the facts in the case, a single conversation with a lawyer did not establish an attorney-client relationship. The plaintiff alleged that she met once at the defendant law firm with an unidentified lawyer who she claimed told her that he would represent her. There was no written record, however, of any arrangement. Moreover, the plaintiff never contacted the firm again and the firm never called her. The court explained that, under these circumstances, the single conversation, which did not result in any further arrangements, was only a preliminary step to the establishment of an attorney-client relationship. See id.

When a lawyer represents an entity, he generally does not establish a lawyer-client relationship with individual employees or members of that entity. [See also 1.13:400, below.] Therefore, "[i]t is well established, as a matter of law, that an attorney handling a labor grievance on behalf of a union does not enter into an 'attorney-client' relationship with the union member asserting the grievance." Gwin v. National Marine Eng'rs Beneficial Ass'n, 966 F. Supp. 4 (DDC 1997). Because a lawyer representing a union "has an obligation to act for the benefit of all members," he has a duty to act in the majority's interest even if it clashes with the interest of an individual member. See id. at 8.

DC Ethics Opinion 337 (2007) (discussed more fully under 1.9:200, below), held that a lawyer who serves as an expert witness for a party typically would not have an attorney-client relationship with the party. The Opinion emphasized that the law firm hiring the expert should take steps to avoid any misunderstanding on the part of the client about whether the client and the expert have an attorney-client relationship.

1.2:220      Lawyer's Duties to Prospective Client

When a person approaches a lawyer with the intention of retaining him, but a lawyer-client relationship is not, in fact, established, the would-be client nonetheless "has a right to expect that a lawyer whom he sought to employ will protect confidences and secrets imparted." Derrickson v. Derrickson, 541 A.2d 149, 153-54 (DC 1988). This obligation previously was reflected in EC 4-1, which stated that a lawyer must preserve the confidences and secrets of one who has sought to employ him. Neither DC Rule 1.2 nor DC Rule 1.6 (confidentiality of client information) nor any of the comments thereto deals in terms with the prospective client. DC Rule 1.10(a) as amended following a recommendation of the Peters Committee necessarily implies an obligation to preserve confidences and secrets of a prospective client by providing that a disqualification resulting from an interview with a prospective client is personal to the lawyer who receives the confidences or secrets and is not imputed to that lawyer's firm. (See new Comments [7]-[9] to DC Rule 1.10; discussion in 1.10:101, below.)

1.2:230      When Representation Must Be Declined [see 1.16:200-230]

The Court of Appeals observed, in Battle v. Thornton, 646 A.2d 315 (DC 1994), that a lawyer may need to decline representation when he believes that he is not qualified to handle a particular case. Because the District of Columbia does not license lawyers in "specialties," the Court rejected the malpractice plaintiff's claim that no lawyer can properly undertake a Medicaid fraud case "unless he or she qualifies as a Medicaid fraud specialist in some formally discernible or recognized sense." Id. at 323. Drawing support from DC Rule 1.1 (Competence), however, the Court observed that a lawyer should conduct an ad hoc self-evaluation of individual qualifications before taking a case in an area outside that lawyer's usual practice. See id. at 322-23.

The most common reason why a representation must be declined is a conflict of interest, with either a current or a former client, and that subject is discussed in connection with Rules 1.7 and 1.9, below.

1.2:240      Client-Lawyer Agreements

DC Ethics Opinion 116 (1982) noted the importance of written retainer agreements to avoid ambiguities regarding the scope of a lawyer's responsibilities. Citing a number of previous opinions, Opinion 116 explained: "As we have stressed in a variety of contexts, the surest way to avoid ambiguity over what a lawyer has undertaken to do for a client is to execute a written retainer agreement." One of the opinions cited there was DC Ethics Opinion 103 (1981), which set forth the broad proposition that "retainer agreements are highly desirable." Responding to an inquiry specifically addressed to form retainers, the Opinion noted, however, that form agreements may not adequately account for all of the terms of representation. The Opinion proposed three factors to be considered in judging whether a form agreement is appropriate: (1) the complexity of the matter, (2) whether the fee arrangement is straightforward or intricate, and (3) the client's level of education, sophistication and experience in dealing with lawyers. The form retainer addressed in the Opinion raised issues of scope of authority, including the authority to make decisions regarding the litigation. In particular, the Opinion concluded that the following statement in the retainer agreement improperly gave the impression that the client yielded all control over the litigation to the law firm: "If the matter is litigated, the firm is authorized to file such legal pleadings as their judgment dictates is required or appropriate." Though acknowledging that technical decisions concerning litigation that do not affect the merits of the client's case must be left to a lawyer's discretion, the Opinion, relying in part on DR 7-101(A) and EC 7-7, concluded that, as an example, a lawyer cannot file pleadings that drop a particular claim or defense without first consulting the client.

1.2:250      Lawyer's Duties to Client in General

DC Ethics Opinion 252 (1994) observed that Rule 1.2 requires a lawyer acting as a guardian ad litem for a child to consult with the child client before bringing a tort action on behalf of the child. The Opinion acknowledged that consultation might not be possible if the client were too young but referred to the mandate of DC Rule 1.4 (communication) to maintain a normal lawyer-client relationship as far as reasonably possible with a child client.

DC Ethics Opinion 85 (1980) stated that a lawyer was not bound under DR 2-110(C)(1)(d) to continue representation of his client when the client made the representation "unreasonably difficult." Thus, although a lawyer must abide by the reasonable objectives of the client, the lawyer may withdraw from the employment when he is left without authorization or instructions from the client. In other words, when the client does not make the objectives of the representation clear, the lawyer is not duty-bound to continue. In the circumstances addressed in the Opinion, the lawyer was asked by his client to draft documents to rescind a settlement offer. Despite repeated assurances that she would sign and return the documents, the client failed to do so. The Opinion concluded that the lawyer could withdraw in those circumstances, cautioning, however, that a lawyer must take great care to avoid disruption and prejudice to the rights of the client. Following similar logic, DC Ethics Opinion 108 (1981) concluded that a lawyer had no obligation under DR 6-101(A)(3) and DR 7-101(A)(1) to file an action on behalf of a client who had disappeared shortly after the two first met and executed a retainer agreement. The lawyer discharged his duty to the client by making diligent efforts to contact and locate the client in accordance with DR 2-110(A)(2).

On the other hand, DC Ethics Opinion 139 (1984) taught that, under DR 6-101(A)(3), DR 7-101(A)(1) and DR 2-110(C)(1)(d), "[w]ithdrawal from employment is not justified where a fugitive client's presence is not necessary to proceed with an appeal and the client believes the attorney still represents her." The Opinion distinguished DC Ethics Opinions 85 (1980) and 108 (1981) on the ground that in those cases additional client contacts were required for the matter to proceed. In Opinion 139, although the client's absence made effective representation more difficult, it did not preclude the lawyer from proceeding, particularly because he was authorized to do so by the client.

Typically, a lawyer who drafts a will for a client is not obligated to inform the client of subsequent changes in the law. DC Ethics Opinion 116 (1982), however, concluded that when a client "entrusts" his estate planning on a continuing basis to the lawyer, DR 6-101(A)(3) and DR 7-101(A)(1) counsel that the lawyer should inform his client of relevant statutory changes. To avoid ambiguities regarding the scope of the lawyer's responsibilities, the Opinion suggested that the lawyer execute a written retainer agreement.

A lawyer's emotional difficulties do not excuse his or her obligation to abide by the ethical rules. Emotional problems, such as chronic depression, can, however, serve to mitigate a sanction when a lawyer has engaged in professional misconduct. See In re Peek, 565 A.2d 627, 631 (DC 1989); In re Dory, 528 A.2d 1247 (DC 1987). Nonetheless, the lawyer must make a showing that the emotional problems did, in fact, play a role in the ethical violations. "With respect to diagnosable, chronic depression we conclude as a general rule . . . that unless a causal nexus can be shown between the depression and the misconduct, the depression can be used neither in mitigation . . . nor for enhancement." Peek, 565 A.2d at 633.

A lawyer "undertakes the full burdens of the legal relationship no matter how informal or how unremunerative that relationship may be." In re Washington, 489 A.2d 452, 456 (DC 1985). Thus, a lawyer was obligated, pursuant to DR 6-101(A)(3) and DR 7-101(A)(2) and (3), to represent "relatives, friends, and business associates" in the same manner as he or she would represent a formal, paying client. In other words, the DC Rules do not and cannot "create two tiers of ethical obligations, one for attorneys acting formally and for gain, and another for those who act for other reasons." Id.

1.2:260      Client's Duties to Lawyer

A primary duty of a client is to compensate the lawyer for his or her services. A lawyer's obligations to the client, however, typically are independent of the client's duties. Thus, in In re Ryan, 670 A.2d 375, 379-80 (DC 1996), the court held that "any supposed failure of a client to fulfill a retainer agreement is no defense to a disciplinary charge against an attorney." Id. This result is consistent with the fact that a lawyer's ethical duties arise out of the establishment of a fiduciary relationship with the client and not a contractual one. See id.

1.2:270      Termination of Lawyer's Authority

Termination by the Client

DC Ethics Opinion 103 (1981) (discussed more fully under 1.2:240, above) observed that a lawyer should make clear to the client that the client has the authority to discharge the lawyer (for any reason or no reason). This is particularly so when the retainer agreement specifies circumstances in which the lawyer may terminate the employment. A one-sided provision that details only the grounds for termination by the lawyer "creates an impression that the client has entered into a relationship that from his point of view is irrevocable."

Withdrawal by the Lawyer

Esteves v. Esteves, 680 A.2d 398 (DC 1996), demonstrates that termination of the relationship may be necessary when "there has been a complete breakdown in the attorney-client relationship." Id. at 403 (quoting Atlantic Petroleum Corp. v. Jackson Oil Co., 572 A.2d 469, 473 (DC 1990)). When there has been such a breakdown in the course of litigation, the lawyer may not terminate the relationship without leave of the court. Withdrawal can be denied if the court finds that it would "unduly delay trial of the case, be unduly prejudicial to any party, or otherwise not be in the interests of justice." Id. at 404. Furthermore, the judge should ensure that the record contains sufficient evidence "'to reveal the type of total breakdown in the attorney/client relationship that would justify, in effect, dismissal of plaintiff's lawsuit.'" Id. (quoting Atlantic Petroleum, 572 A.2d at 472). The Court in Esteves approved the withdrawal of Ms. Esteves' counsel on the day of trial on two grounds. First, counsel's withdrawal did not severely prejudice Ms. Esteves because her case was not dismissed. Second, despite the fact that the motion was granted on the first day of trial, Ms. Esteves' consent to the withdrawal on the basis of "irreconcilable differences" indicated that she had had adequate notice to obtain other counsel. See id. at 404-05.

In Atlantic Petroleum, the trial court granted plaintiff counsel's motion to withdraw on the day of trial and then dismissed the case the following day for failure to prosecute because the plaintiff was not prepared to proceed with new counsel. The Court of Appeals reversed the trial court's order because the record did not show the sort of "total breakdown" required to permit termination of the relationship, particularly on the day of trial. 572 A.2d at 474-75. In light of the fact that plaintiff's president and trial counsel had encountered similar problems in the past that had been worked out, the court held that the present uncooperativeness, including the president's failure to return phone calls and his late arrival to meetings, did not rise to a level that supported termination of the relationship. Id. at 474. Moreover, the very fact that the client's case had to be dismissed for unreadiness to proceed with new counsel indicated that allowing the original counsel to withdraw was improvident. Id.

1.2:300   Authority to Make Decisions or Act for Client

· Primary DC References: DC Rule 1.2(a)
· Background References: ABA Model Rule 1.2(a), Other Jurisdictions
· Commentary: ABA/BNA § 31.301, ALI-LGL §§ 22-23, Wolfram §§ 4.4, 4.6

Blumenthal v. Drudge, 186 FRD 236 (DCC 1999) dealt with discovery disputes in a case in which, as the Court observed,

[o]nce discovery began, the parties and their lawyers quickly devolved to the kind of conduct that rightly gives the legal profession a bad name. The papers filed by lawyers on both sides, and the correspondence and deposition excerpts that accompany them, are replete with examples of rudeness, childish bickering, name-calling, personal attacks, petty arguments and allegations of stonewalling and badgering of witnesses. There is such mistrust and suspicion that counsel refuse even to talk to each other on the telephone to attempt to resolve discovery disputes.

Id. at 239. The Court cited DC Rule 1.2 in reminding counsel that

[t]hey — and not their clients — have a professional obligation to control the means and methods used to achieve the goals of this litigation and that they must act as professionals even if that requires them to tell their clients that certain tactics are beyond the pale.

Id. The Court went on to say that

Lawyers are not to reflect in their conduct, attitude or demeanor their clients' ill feelings toward other parties and may not "even if called upon by a client to do so, engage in offensive conduct directed towards other participants in the legal process," or "bring the profession into disrepute by . . . making ad hominem attacks. . . ."

Id. at 239-40 [quoting the DC Bar's civility standards (see 3.4:101, below), and citing as well the American Bar Association's Guidelines for Litigation Conduct].

1.2:310      Allocating Authority to Decide Between Client and Lawyer [see 1.2:300]

Typically, a lawyer has "broad latitude" in making decisions regarding the direction of litigation. See Hilton Hotels Corp. v. Banov, 899 F.2d 40, 45 (DC Cir 1990) (citing EC 2-26 and MR 1.2(a)). Nevertheless, there are certain issues over which the client retains ultimate decisionmaking authority. Where the dividing line lies, however, is the subject of some debate. Courts recognize the difficulty of determining who has authority to decide matters. One DC judge has observed that this is "a subject area in which neither academics nor practitioners always agree," and "Determining what does and does not fall within the purview of an attorney's inherent authority to make tactical decisions can be extremely difficult . . . ." In re Stanton, 532 A.2d 95, 101 (DC 1987) (Mack, J., concurring). See also ABA/BNA Lawyer's Manual on Professional Conduct § 31:301 (1989).

In United States v. Ortiz, 82 F.3d 1066, 1070 (DC Cir 1996), the DC Circuit held that "a criminal defendant has a fundamental constitutional right to testify that is personal to the defendant and cannot be waived by counsel or the court." See also Boyd v. United States, 586 A.2d 670, 674 (DC 1991). Citing, among other authorities, MR 1.2(a), the court concluded that "[a]lthough the decision to testify involves a strategic choice, the choice remains the defendant's and not his attorney's." Id.

The DC Circuit, in United States v. Morrison, 98 F.3d 619 (DC Cir 1996), cert. denied, 117 S. Ct. 1279 (1997), articulated the distinction between certain decisions over which authority is allocated to the lawyer and those as to which authority is allocated to the client. Relying in part on MR 1.2(a), the court stated: "The decision whether to object to a particular item of evidence is not among those in regard to which the client's input is considered essential, as are the decisions whether to plead guilty, whether to testify, and whether to take an appeal." Id. at 626 n.8.

1.2:320      Authority Reserved to Client

One of the numerous ethical transgressions found in In re Hager, 812 A.2d 904 (DC 2002) [which is more fully discussed under 1.7:500, below] was a violation of Rule 1.2.(a)'s requirement that a lawyer abide by the client's decision whether to accept a settlement. In the underlying case the lawyers representing the plaintiffs in a potential class action had made a side deal with the defendant, unknown to their clients, under which the defendant paid them $225,000 as attorneys fees and expenses, the lawyers agreed never to represent anyone with related claims against the defendant and to keep totally confidential and not to disclose to anyone all information learned during their investigation relating to the case, and all the parties agreed not to disclose most of the terms of the settlement, even to the lawyers' clients.

DC Ethics Opinion 289 (1999) [discussed more fully under 5.4:400, below], addressing various issues potentially presented by a non-profit organization's program of "cause" litigation involving the representation of third persons, concluded, inter alia, that although Rule 1.2(c) allows a lawyer and client to agree to limit the objectives of a representation, an advance agreement by the client not to accept a settlement offer that was conditioned on keeping the fact and/or the terms of the settlement confidential, or one conditioned on waiver of the right to pursue court-awarded fees, would violate Rule 1.2(a), for "a client's right to accept or reject a settlement is absolute."

DC Ethics Opinion 103 (1981) [discussed more fully under 1.2:240, above] addressed the importance of advising a client that ultimate authority rests with the client. Although a client may delegate broad authority to the lawyer, the lawyer should, at the formation of the relationship, explain that the client retains ultimate decisionmaking authority until he or she delegates that authority to the lawyer.

DC Ethics Opinion 21 (1976) instructed that a lawyer may not dismiss a case without the client's consent even though the client has failed to pay the costs, as agreed, for the appearance of critical witnesses. If the client failed or refused to provide the money to bring the witnesses to court and the lawyer knew that he could not prevail without those witnesses, he might seek leave to withdraw from the employment in accordance with DR 2-110(C)(1)(d) and (f).

1.2:330      Authority Reserved to Lawyer [see 1.2:300, 1.2:320]

1.2:340      Lawyer's Authority to Act for Client

"Ordinarily, the acts and omissions of counsel are imputed to the client even though detrimental to the client's cause. This rule is necessary for the orderly conduct of litigation." Railway Express Agency, Inc. v. Hill, 250 A.2d 923, 926 (DC 1969). Courts recognize an exception to this rule, however, when "the conduct of counsel is outrageously in violation of either his express instructions or his implicit duty to devote reasonable efforts in representing his client." Id. For example, a lawyer's total disregard for his client's case typically will not be imputed to the client. See id. Nevertheless, to seek relief from the effects of a lawyer's lack of diligence, such as a dismissal for failure to prosecute, the client must show that he himself was not negligent. See id. In Railway Express, the court found that the client had shown a "remarkable indifference" to his case, having not contacted his lawyer for 20 months regarding the status of his case. Id. As a result, the court dismissed the case, reversing the lower court's reinstatement of the plaintiff's action. See id. at 927.

In Makins v. District of Columbia, 861 A.2d 590 (DC 2004)(en banc), the DC Court of Appeals answered a question about District of Columbia law regarding the authority of a lawyer to agree to a settlement that will be binding on the lawyer’s client that had been certified to the Court by the District of Columbia Circuit. Specifically, the question was whether a client is bound by a settlement agreement negotiated by her attorney when the client has not given the attorney actual authority to settle the case on specific terms but has authorized the attorney to attend a settlement conference before a magistrate judge and to negotiate on her behalf, and the attorney leads the opposing party to believe that the client has agreed to those terms.  A divided panel of the Court had answered the certified question in the negative, in Makins v. District of Columbia, 838 A.2d 300 (DC 2002), but the Court granted a motion for reconsideration en banc which resulted in the same conclusion, but on somewhat different reasoning from that of the panel decision.  Specifically, after a thorough canvass of DC decisional authority and the Restatement of Agency, the en banc Court held that the client’s actions in sending her attorney to a court-ordered settlement conference and permitting the attorney to negotiate on her behalf were insufficient to confer apparent authority to settle the matter, and that the attorney’s conduct and representation of his authority to settle were not dispositive as to whether the attorney had apparent authority, since apparent authority depends on representations made, explicitly or implicitly, by the client, not those made by the client’s attorney.

In Van Kuhn v. United States, 900 A.2d 691 (DC 2006)¸ an appellant challenged his conviction of armed robbery, claiming ineffective assistance of counsel on the ground that his lawyer, after consulting with him about the argument to be made, chose, over his objection, to argue a theory of defense different from the one that the appellant had adopted in his testimony.  The Court held that although DC Rule 1.2(a) requires a lawyer to abide by the client’s decision as to a plea to be entered, whether to waive a jury, whether the client will testify, and and the objectives of a representation, it is the lawyer’s responsibility to decide how the objectives are to be achieved.  900 A.2d at 700. Thus, “the lawyer has -- and must have -- full authority to manage the conduct of the trial” (quoting Taylor v. Illinois, 484 U.S. 400, 418 (1988)), and so, after appropriate consultation, “strategic and tactical decisions are the exclusive province of the defence sounsel” (quoting Jones v. Barnes, 463 U.S. 400, 753 (1983)).

1.2:350      Lawyer's Knowledge Attributed to Client

Conduct by a lawyer that would normally warrant dismissal of a case as a sanction should not automatically be attributed to the client. In Shea v. Donohoe Construction Co., 795 F.2d 1071 (DC Cir 1986), the court "advise[d] strongly that district courts themselves directly notify the client when attorney misconduct has occurred to a degree that the court is contemplating dismissal if a recurrence occurs." Id. at 1078 (emphasis omitted). The court explained that only after such notification should a court attribute knowledge of the misconduct to the client, stating that if "after this notification the attorney persists in the errant conduct, then the client shares in the responsibility for that conduct." Id. The court limited this notice procedure, however, to cases where dismissal is intended for punitive or deterrent purposes. See id. The court thus left open the possibility that dismissal may be warranted without notice to the client when the lawyer's misconduct causes actual prejudice to the other party or the judicial system. See id. at 1074-77. When prejudice is so severe as to warrant dismissal, the court observed that "it has generally been considered irrelevant whether the delay is the fault of the counsel or his client." Id. at 1074. In either case, the court cautioned that a trial court should consider measures less drastic than dismissal when possible. See id. at 1076.

Despite acknowledging the notice procedure suggested by Shea, the court in Tucker v. District of Columbia, 115 F.R.D. 493, 496 (DDC 1987), granted defendant's motion to dismiss without prior warning to the plaintiff client. Under the circumstances, the court believed that its decision to dismiss was guided by Link v. Wabash R.R., 370 U.S. 626 (1962), which held that a judge has inherent authority to dismiss a case for the plaintiff's failure to prosecute. Essentially rejecting the concerns of the court of appeals in Shea that dismissal without prior notice to the client "imposes an unjust penalty on the client," the district court in Tucker justified its dismissal order by stating: "Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent." Tucker, 115 F.R.D. at 496. Moreover, the court, drawing support from Link, asserted that "each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.'" Id. (quoting Link, 370 U.S. at 633-34). The Court's conclusions appear to contradict Shea's express admonition that "[w]hen the client's only fault is his poor choice of counsel, dismissal of the action has been deemed a disproportionate sanction." Shea, 795 F.2d at 1077.

Following Shea, the Court in Berry v. District of Columbia, 833 F.2d 1031, 1037 (DC Cir 1987), reversed the district court's order dismissing certain claims on the grounds that plaintiff's attorney had failed to file a pretrial brief by the court-imposed deadline, had failed to attend a status conference and had failed to file a pleading specifically requested by the court. Because the misconduct had not severely prejudiced the opposing party, had not placed an intolerable burden on the judicial system and had not been approved in any way by the client, the Court stated that it "was incumbent upon the District Court to consider measures less drastic than dismissal." Id.

1.2:360      Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

Reliance by a client on the advice of his lawyer often can be used as a defense to avoid responsibility, or at least to mitigate the sanction, for particular client conduct. For example, because Rule 10b-5 of the Securities Exchange Act, Section 17(a)(1) of the Securities Act and Section 206(1) of the Investment Advisers Act require for liability thereunder that a person act with "intent" to defraud, evidence that a person relied in good faith on his lawyer's advice under these statutes can relieve him of liability. See SEC v. Steadman, 967 F.2d 636, 642 (DC Cir 1992). The court in Steadman concluded that a person cannot "reasonably be said to have demonstrated an intent to defraud or a reckless disregard of [his] legal obligations" when he relies upon advice that the conduct in question is legal. Id.

Even though reliance on advice of counsel does not absolve a client from liability, it may help to mitigate the sanction for misconduct. In WEBR, Inc. v. FCC, 420 F.2d 158 (DC Cir 1969), the court affirmed the FCC Review Board's conclusion that good faith reliance on the advice of counsel, while not relieving the client of responsibility for a violation of FCC application procedures, was sufficient to avoid disqualification for character reasons.

It is important, however, that a client's reliance on his lawyer's advice be reasonable and in "good faith." Safir v. Klutznick, 526 F. Supp. 921 (DDC 1981), vacated sub nom. Safir v. Dole, 718 F.2d 475 (DC Cir 1983), demonstrated this requirement. In an effort to mitigate subsidy recoveries sought by the government under section 810 of the Merchant Marine Act of 1936, the defendant, AGAFBO, argued that it relied upon counsel's advice that it could "lower its prices to a predatory level." See id. at 934. The court nonetheless rejected the defense on the ground that if such advice was actually given it was unreasonable and not in good faith. See id. Specifically, the court stated that, "any ordinary businessman, not to mention 'astute' AGAFBO shipping executives, should have known that AGAFBO's concerted effort to restrain U.S. flag competition was illegal." Id. Reliance on counsel's advice may thus be unreasonable because of the substance of the advice; it may also be unreasonable because of who gave the advice. Thus, in WHW Enterprises, Inc. v. FCC, 753 F.2d 1132 (DC Cir 1985), the court held that the president of a company could not use reliance on counsel as a mitigating factor where the advice relied on was given to him by a lawyer who was himself an officer and director of the company, an interested party in the matter. See id. at 1142. Had the court accepted the president's defense under those circumstances, the result would be "that where the president of a company acts pursuant to the improper advice of another officer of the company, the company and both officers are absolved of any blame for wrongdoing." Id.

It goes without saying that a client cannot rely on the advice of counsel to avoid or mitigate responsibility when his conduct is beyond the scope of his lawyer's advice. Thus, in an action to recover certain legal costs resulting from his lawyer's negligent advice, a client could not recover costs stemming from an NLRB complaint that alleged violations about which the lawyer had not given advice. See M & S Bldg. Supplies, Inc. v. Keiler, 738 F.2d 467, 473 (DC Cir 1984).

1.2:370      Appearance Before a Tribunal

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

1.2:380      Authority of Government Lawyer

Paragraph (d) of DC Rule 1.2, which has no counterpart in MR 1.2, recognizes that a government lawyer's authority and control over decisions concerning the representation may, by dint of statute or regulation, be broader than contemplated by paragraphs (a) and (c).

1.2:400   Lawyer's Moral Autonomy

· Primary DC References: DC Rule 1.2(b)
· Background References: ABA Model Rule 1.2(b), Other Jurisdictions
· Commentary: Wolfram § 10.4

DC Ethics Opinion 231 (1992) held that "the Rules were not generally intended to reach the actions of a lawyer as a legislator," particularly in view of DC Rule 1.2(b), which provides that a lawyer's representation of a client "does not constitute an endorsement of the client's political, economic, social, or moral views or activities." As a result, the Opinion concluded that no provision of the DC Rules would require client consent or preclude a lawyer who is a City Council member from voting on legislation that could affect the future business of the member's law firm.

1.2:500   Limiting the Scope of Representation

· Primary DC References: DC Rule 1.2(c)
· Background References: ABA Model Rule 1.2(c), Other Jurisdictions
· Commentary: ABA/BNA § 31:301, ALI-LGL § 20, Wolfram § 5.6.7

DC Ethics Opinion 330 (2005) examined the practice of “unbundling” legal services.  As explained in the Opinion, “‘Unbundling’ refers to the separation of the tasks full service lawyers typically conduct into their discrete components, only some of which the client contracts with the lawyer to provide.”  For example, the client may want a lawyer to draft a complaint or a brief for the client to file pro se, or draft a contract reflecting terms the client negotiated.  The Opinion concluded that unbundling was no different from an agreement to provide limited representation pursuant to Rule 1.2(c), and thus that unbundling was permissible as long as the lawyer clearly explained the scope of the representation and the limited scope did not prevent the lawyer from providing competent service.

The Opinion also discussed several issues that may arise in the context of unbundled service arrangements.  The Opinion stated that a lawyer has a duty to alert the client to any legal problems the lawyer discovers during the representation, even if the problems fall outside the scope of the representation.  The Opinion also concluded that opposing counsel should treat pro se litigants as unrepresented, rather than as “represented” for purposes of Rule 4.2, even if the opposing counsel knows that the pro se litigation is receiving help from a lawyer.  Finally, the Opinion concluded that noting in the DC Rules precluded lawyers from “ghostwriting” documents – that is, nothing required lawyers who assist pro se litigants in preparing court papers to disclose their involvement.

DC Ethics Opinion 289 (1999) [discussed more fully under 5.4:400, below], addressing various issues potentially presented by a non-profit organization's program of "cause" litigation involving the representation of third persons, concluded, inter alia, that although Rule 1.2(c) allows a lawyer and client to agree to limit the objectives of a representation, an advance agreement by the client not to accept a settlement offer that was conditioned on keeping the fact and/or the terms of the settlement confidential, or one conditioned on waiver of the right to pursue court-awarded fees, would violate Rule 1.2(a), for "a client's right to accept or reject a settlement is absolute."

DC Ethics Opinion 248 (1994) responded to an inquiry as to whether a lawyer may jointly represent two clients, both of whom had applied for, but not received, a particular job and who both believed that the hiring decision was based on prohibited discriminatory practices. The Opinion concluded, in part, that the lawyer and clients could limit the objective of the representation, under DC Rule 1.2(c), to establishing the liability of the employer. Nonetheless, the Legal Ethics Committee expressed concern about "whether that would often be feasible."

DC Ethics Opinion 21 (1976) stated that DR 5-103(B) did not obligate a lawyer to advance the costs of litigation if he had not assumed a contractual obligation with the client to do so. Furthermore, a lawyer can condition his representation on the client's commitment to pay the costs of litigation. Such a provision in a retainer agreement is, in essence, a limit on the means of representation, as expressed in Comment [4] to DC Rule 1.2. Although paragraph (c) of the DC Rule provides that a lawyer may limit the "objectives" of representation, Comment [4] states that the terms upon which representation is undertaken may exclude means, as well as objectives.

1.2:510      Waiver of Client or Lawyer Duties (Limited Representation)

DC Ethics Opinion 143 (1984) held that, under DR 5-105 and DR 7-101, a lawyer could represent jointly a couple seeking divorce so long as three requirements were met. First, the representation must be limited in scope. On the facts stated in the Opinion, representation was sought solely for the purpose of implementing the couple's preexisting agreement to dissolve their marriage and on the terms of the dissolution. Second, there cannot be any existing conflict between the two clients as to the objective of the representation. Third, the clients must give their uncoerced consent after full disclosure of the limitations inherent in joint representation. The Opinion drew support from DC Ethics Opinion 49 (1978), which permitted joint representation of two corporations for the purpose of drafting an agreement whose general terms had been orally accepted. Turning from Opinion 49 to DC Ethics Opinion 54 (1978), Opinion 143 recognized that joint representation may be more troublesome in a litigation context because the client seeks an advocate, not simply an "adviser, negotiator or scrivener." Nonetheless, Opinion 54 had concluded that joint representation, though not preferred, was not ethically prohibited. The basis for this conclusion was that "clients may limit the objectives of representation and that, once so-limited, a lawyer must limit his own zealous representation to those objectives."

The issue of joint representation in divorce cases was revisited under the DC Rules in DC Ethics Opinion 243 (1993). There, the inquirer intended to "play an active role in helping the parties reach a detailed divorce agreement," as well as proposing solutions from the perspective of mediator. Although DC Ethics Opinion 143 had permitted joint representation of the spouses in a divorce case, Opinion 243 distinguished it on the basis that the representation proposed there was much more limited. Moreover, the Legal Ethics Committee found that the result in Opinion 143 was the exception rather than the rule, stating that "the Opinion certainly suggests that joint representation in divorce cases is usually impermissible." Despite finding the proposed representation impermissible under the reasoning of Opinion 143, the Committee considered whether representation under a broader range of circumstances was permissible under the DC Rules. The Opinion concluded that the proposed representation was not permitted under the DC Rules, stating, in part, that "[w]hatever discretion Rule 1.2 gives clients to define the objectives of representation, it does not include the discretion to retain a lawyer under circumstances likely to cause the lawyer to act in ways (or to be perceived to act in ways) detrimental to the client-lawyer relationship."

1.2:600   Prohibited Counseling and Assistance

· Primary DC References: DC Rule 1.2(e)
· Background References: ABA Model Rule 1.2(d), Other Jurisdictions
· Commentary: ABA/BNA § 31:301, ALI-LGL § 105, Wolfram § 13.3

1.2:610      Counseling Illegal or Fraudulent Conduct

DC Ethics Opinion 219 (1991) expressly affirmed that DC Rule 1.2(e) obligates a lawyer to withdraw from representation upon a client's failure to rectify fraudulent conduct if the fraud is ongoing and the representation would therefore involve assistance in the fraud by the lawyer. See id. at n.3. A lawyer does not have a duty to withdraw, however, if she does not actually know of the client's fraudulent conduct. Thus, the court, in In re Hopkins, 687 A.2d 938 (DC 1996), upheld a determination by the Board on Professional Responsibility that a lawyer did not have a duty (under DR 2-110(B)(2), the predecessor of Rule 1.16(a)(1)), to withdraw from representation when she "suspected that her client might engage in wrongdoing, she feared it, she tried to persuade him to allow her to set up safeguards, but she did not know with the certainty of Austern [referring to In re Austern, 524 A.2d 680 (DC 1987), discussed under 1.2:620, below] that her client was engaged in fraud." 687 A.2d at 940 (emphasis omitted). Despite suspecting that her client was stealing from the estate for which he was personal representative, it was not "obvious" to her that continued employment would violate the Disciplinary Rules. The court concluded, however, that "we expect that the opinion . . . in this case will cause attorneys to take greater care to separate themselves from 'renegade' clients." Id. at 942.

1.2:620      Assisting Illegal Conduct or Fraud by Client

DC Ethics Opinion 242 (1993) affirmed in passing that, under DC Rule 1.2(e), a lawyer may not "assist" a client in proposed conduct that the lawyer knows is criminal or fraudulent. Therefore, a lawyer cannot allow a client access to documents in his custody that are not the property of the client if he knows that the client intends to use the documents for a criminal or fraudulent purpose.

A lawyer violated ethical obligations when he assisted his client in concealing information about the client's funds in response to discovery requests in a divorce suit. In In re Sandground, 542 A.2d 1242 (DC 1988), the lawyer participated in secret transfers of the client's funds and responded misleadingly to interrogatories. The court concluded, in part, that the lawyer's conduct was a violation of DR 7-102(A)(7). Id. at 1244-45.

In In re Austern, 524 A.2d 680 (DC 1987), the DC Court of Appeals addressed a lawyer's duty when his client requests that he participate in conduct that is illegal or fraudulent. In that case, the client-seller offered to place $10,000 in an escrow account to induce the purchasers to go to settlement. As co-escrow agent, the client-seller's lawyer accepted a check for deposit into the account from the client, who informed the lawyer that the check was "worthless." Nonetheless, the lawyer deposited the check and did not inform the other co-escrow agent that it was not backed by funds in a bank. By the time one of the purchasers made a claim against the account, the funds had been placed in the account. Despite the fact that no purchaser was harmed, the lawyer was publicly censured for assisting the client in fraudulently inducing settlement. Resting its conclusion on DR 7-102(A)(7) and Model Rule 1.2 (though the Rules were not yet in effect in the District), the court held that, "the attorney is under an affirmative duty to withdraw from representation." Id. at 682-83. (Thus, a lawyer has similar ethical obligations whether the lawyer is placed in a position where he is asked to counsel illegal conduct, see 1.2:610 above, or one where he is asked to assist in that conduct.)

1.2:630      Counseling About Indeterminate or Uncertain Law

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

1.2:700   Warning Client of Limitations on Representation

· Primary DC References: DC Rule 1.2(f)
· Background References: ABA Model Rule 1.2(e), Other Jurisdictions
· Commentary: ABA/BNA § 31:307, ALI-LGL § 105

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

1.2:800   Identifying to Whom a Lawyer Owes Duties

· Primary DC References: DC Rule 1.2
· Background References: ABA Model Rule 1.2, Other Jurisdictions
· Commentary: ABA/BNA § 31:101, ALI-LGL § 105, Wolfram § 7.2

1.2:810      Prospective Clients [see 1.2:220]

1.2:820      Persons Paying for Representation of Another [see 1.7:400]

1.2:830      Representing an Entity [see 1.13:200]

1.2:840      Representing a Fiduciary [see 1.1:410, 1.1:440, and 1.13:520]

1.2:850      Class Action Clients

Case law addressing class actions typically discusses the obligations of the "class representative." This person or entity is certified by the court to represent the interests of the absent class members. As an agent of the class representative, the representative's lawyer undertakes to discharge the duties of the representative. Primarily, the representative's duty is to "ensure that the absent members' interests are adequately protected." National Ass'n of Reg'l Med. Programs, Inc. v. Mathews, 551 F.2d 340, 346 (DC Cir 1976). It is thus important for a class representative's lawyer to litigate a case not just for the benefit of the representative but in pursuit of the class members' common goals. The most basic obligation of the representative and its lawyer is to provide individual notice to the absentee class members. See Walsh v. Ford Motor Co., 807 F.2d 1000, 1008 (DC Cir 1986). In Walsh, the court held that Congress did not eliminate the duty to notify individual class members in suits brought under the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act. See id. at 1011. In reaching this conclusion, the court observed that Congress did expressly limit the notice obligations of the class representative in suits arising under the Deepwater Port Act of 1974. See id.