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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.3   Rule 1.3 Diligence and Zeal

1.3:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 1.3
· Background References: ABA Model Rule 1.3, Other Jurisdictions
· Commentary:

1.3:101      Model Rule Comparison

Model Rule 1.3 consists of a single sentence, "A lawyer shall act with reasonable diligence and promptness in representing a client," and its descriptive title consists of the single word "DILIGENCE." DC Rule 1.3 adds "AND ZEAL" to the descriptive title, and otherwise expands upon the two concepts. Paragraph (c) of the DC Rule is identical to the Model Rule without its reference to "diligence."

Paragraph (a) retains the language of Model Code Canon 7 that encourages lawyers to represent clients "zealously within the bounds of the law," but changes Canon 7's aspirational "should" to "shall," and adds diligence as an additional requirement along with zeal.

Paragraph (b) of the DC Rule provides that a lawyer shall not intentionally (1) fail to seek the client's lawful objectives "through reasonably available means permitted by law and the disciplinary rules," or (2) "prejudice or damage a client during the course of the professional relationship." The second of these continues the prohibition of DR 7-101(A)(3), which was dropped from the Model Rules.

The Comments to the DC Rule are more numerous and extensive than the Comments to the Model Rule. The Model Rule's Comments appear as Comments [1], [7], and [8] to the DC Rule. The Jordan Committee also relied extensively on the Ethical Considerations under Canon 7 when crafting the Comments for Rule 1.3. Comments [2], [3], [4], [5], and [6] restate EC's 7-1, 7-2, 7-3, 7-9, and 7-10 respectively.

On the recommendation of the Peters Committee, the Court of Appeals approved an additional Comment [9] to Rule 1.3, effective November 1, 1996. The Comment states that Rule 1.3 is "not meant to govern conflicts of interest, which are governed by Rules 1.7, 1.8 and 1.9." The new Comment reflects a belief that general ethical principles such as Rule 1.3 should not govern conduct also covered by specific, detailed rules. [See also 1996 Amendments, under 1.3:200, below.]

The ABA Ethics 2000 Commission recommended no changes to Model Rule 1.3, and the ABA made none, though there were some small changes to several of the Comments to the Model Rule, and addition of a new Comment [5], recognizing the importance of advance planning by sole practitioners to ensure that their clients are not adversely affected by a sudden loss of legal representation due to the lawyer's death.  A new Comment [5], differently phrased but to similar effect, was added to the DC Rule. 

1.3:102      Model Code Comparison

Canon 7 stated that "a lawyer should represent a client zealously within the bounds of the law." DC Rule 1.3(a) makes that responsibility mandatory by changing "should" to "shall." Subparagraph (b)(1) is taken from DR 7-101(A)(1), and subparagraph (b)(2) from DR 7-101(A)(3). Paragraph (c) is based on DR 6-101(A)(3), which required that a lawyer not "neglect a legal matter entrusted to him."

1.3:200   Diligence and "Zeal"

· Primary DC References: DC Rule 1.3(a) & (b)
· Background References: ABA Model Rule 1.3, Other Jurisdictions
· Commentary: ABA/BNA § 31:401, ALI-LGL § 16, Wolfram § 10.3

DC Rule 1.3(a) states that a lawyer "shall represent a client zealously and diligently within the bounds of the law." Rule 1.3(b) then states that a lawyer shall not intentionally (1) fail to seek the lawful objectives of a client through reasonably available means permitted by law and the disciplinary rules or (2) prejudice or damage a client during the course of the professional relationship. According to Comment [1], Rule 1.3 requires the lawyer to pursue a matter on a client's behalf despite "opposition, obstruction, or personal inconvenience to the lawyer." Comment [2] states that the lawyer's duty to be diligent and zealous derives from his or her "membership in a profession that has the duty of assisting members of the public to secure and protect available legal rights and benefits." The scope of the duty, however, is not boundless. Comment [5] permits a lawyer to ask the client to forgo action that the lawyer believes to be unjust and to inform the client of the limitations on the lawyer's conduct when the client expects assistance not in accord with the professional rules of conduct. The comment also states that the lawyer's duty to his or her client is subject to the duty of candor before a tribunal under Rule 3.3 and the duty to expedite litigation under Rule 3.2.

In In re Hunter, 734 A.2d 654 (DC 1999), the Court approved the imposition of reciprocal discipline upon a lawyer who had been suspended by the US District Court for ethical violations arising out of her representation of a criminal defendant in a case in which an officer with whom the lawyer was romantically involved had participated in the arrest of a co-defendant and was to be a government witness at trial. The District Court had found the lawyer's conduct violative of, inter alia, Rules 1.3(a), 1.4(b), 1.7(b)(4), 8.4(a) and 8.4(d).

In In re Bernstein, 707 A.2d 371 (DC 1998), a lawyer was found to have violated Rule 1.3(a) as well as Rules 1.3(c) and 1.4(a) when, having settled his clients' claims arising out of an automobile accident with the defendant's liability insurance carrier, he delayed for three years pursuing a claim for medical expenses from the clients' own insurer, failed timely to respond to an offer of the full coverage from that insurer, and failed timely to tell his clients about either the belated suit against the second insurer or the offer it had made.

In In re Mance, 869 A.2d 339 (DC 2005), the Court upheld a finding that the respondent had violated Rules 1.3(a) and (b), as well as Rules 1.1(a) and (b), by filing an untimely appeal from his client’s criminal conviction of multiple offenses and failing to seek available relief for that lapse, and in addition failing to get the client’s sentence reduced on the available ground that some of the offenses of which he was convicted merged.  With respect to the finding that the neglect met the “hallmark” under Rule 1.3(b) of being intentional, the Court approved the Board’s recognition that the Rule does not require proof of intent “in the usual sense of the word;” rather, “[n]eglect ripens into an intentional violation when the lawyer is aware of his neglect of the client matter” (quoting In re Lewis, 689 A.2d 561, 564 (DC 1997).  Similarly, in In re Outlaw, 917 A.2d 684 (DC 2007), the Court upheld the Board’s determination that the respondent’s error in miscalculating the applicable statute of limitations in her client’s tort case, and her neglect of the case that allowed the limitation period to expire before initiating meaningful negotiations with the defendant’s insurance carrier constituted failure to provide zealous and diligent representation in violation of Rule 1.3(a) as well failure to provide competent representation and to serve the client with skill and care, in violation of DC Rules 1.1(a) and (b), despite the fact that the error in recording the applicable limitations period had been made by an employee who was under the respondent’s supervision and not by the respondent herself.

Numerous opinions of the DC Bar Ethics Committee discuss a lawyer's duty to represent a client diligently and zealously. DC Ethics Opinion 256 (1995) concluded that a lawyer who receives documents containing confidences or secrets inadvertently sent by other counsel and reads them in good faith, not knowing that their disclosure was inadvertent, may retain and use the documents. The Opinion said, among other things, that to require a lawyer to protect the confidentiality of such materials, as suggested by ABA Formal Opinion 92-368 (1992), would place too much of a burden on a lawyer's obligation under Rule 1.3 to represent his client zealously and diligently. DC Ethics Opinion 252 (1994) relied on Rule 1.3, inter alia, in concluding that a lawyer who has been appointed guardian ad litem for a child in abuse and neglect proceedings also has a duty to advise the child, or those responsible for the child's care, about potential tort claims and to preserve those claims if necessary. DC Ethics Opinion 246 (1994) held that Rule 1.3 may preclude a lawyer from reporting under Rule 8.3(a) the misconduct of a client's former lawyer if the disclosure would prejudice the client.

The duty to represent a client zealously and diligently may apply even if the client maintains only minimal contact with the lawyer and exhibits minimal interest in the matter that is the subject of the representation. Thus, DC Ethics Opinion 139 (1984) concerned a lawyer who represented a client in a criminal matter. After the client was convicted, she became a fugitive and only occasionally phoned her lawyer. The Opinion determined that DR 7-101(A) required the lawyer to proceed with the client's appeal.

There is no duty under Rule 1.3, however, if the lawyer-client relationship has been abandoned by the client or has been terminated. Thus, DC Ethics Opinion 116 (1982) stated that a lawyer who had previously drafted a will for a client has no duty to seek out and inform that former client of a change in the law that occurred after the representation clearly had concluded. And DC Ethics Opinion 108 (1981) determined that a lawyer no longer has a duty to represent a client zealously and diligently in a possible lawsuit when, after an initial consultation, the client moves from the area without informing the lawyer, leaves no forwarding address, and otherwise abandons her legal claim.

1996 Amendments

Before the adoption of the amendments proposed by the Peters Committee, effective November 1, 1996, Rule 1.3 had been held to preclude a lawyer from continuing to represent two clients with conflicting interests in a matter when the conflict undermined the lawyer's ability to be a zealous and diligent advocate for both, even if the clients consented to the joint representation. Thus, DC Ethics Opinion 248 (1994) addressed whether a lawyer could simultaneously represent two clients in an employment discrimination case where the interests of the clients could potentially conflict. The Opinion stated that even if Rule 1.7 did not bar the representation because both clients had consented, Rule 1.3 still might preclude the representation. With respect to those clients whose interests conflict, the lawyer will have to determine whether his or her "obligations to them will limit his [or her] ability to represent each of them zealously and diligently." This Opinion rested in part on Comment [15] to DC Rule 1.7 (interpreting paragraph (c)(2) of that Rule, as it then stood), which stated in effect that even if Rule 1.7 was satisfied by client consent, the lawyer still had obligations under Rules 1.3, 1.4 and 1.6 that might bar a particular representation. That comment was, however, omitted in the 1996 amendments proposed by the Peters Committee, along with Rule 1.7(c)(2), and a new Comment [9] to Rule 1.3 was adopted, which states that Rule 1.3 is a rule of general applicability and is not meant to restrict any specific rule, and, in particular, the rule is not meant to govern conflicts of interest, which are governed by Rules 1.7, 1.8 and 1.9. See also DC Ethics Opinion 253 (1994) (to the same effect as Opinion 248); DC Ethics Opinion 210 (1990) (same); DC Ethics Opinion 163 (1986) (same).

1.3:210 Prejudicing a Client

As has been noted, DC Rule 1.3(b)(2), preserves the prohibition against prejudicing or damaging a client in the course of a professional relationship that was found in DR 7-101(A)(3) of the Model Code, but that was dropped in the Model Rules.

Its predecessor Code provision had been interpreted as preventing a lawyer from engaging in activities related to the lawyer's law practice when those activities could adversely affect a client's interests. DC Ethics Opinion 5 (1975) advised that a lawyer could violate DR 7-101(A)(3), Rule 1.3(b)(2)'s predecessor provision, by publishing an article in a legal journal that reflected unfavorably on his client's case. DC Ethics Opinion 204 (1989) concluded that DR 7-101(A)(3) barred a law firm from submitting comments on its own behalf to an administrative agency in a rulemaking proceeding that could adversely affect clients with applications pending before the agency, although it did not prevent a firm from making comments that would not affect pending client applications. DC Ethics Opinion 231 (1992) held, however, that Rule 1.3 does not prevent a lawyer who also is a DC Council member from voting on legislation that could adversely affect some of the clients represented by the lawyer-member's firm.

DC Ethics Opinion 326 (2004) held that recommending competent counsel to an unrepresented person who approaches the lawyer seeking representation in a matter that is or would be adverse to a party with whom the lawyer has an on-going lawyer-client relationship does not constitute prejudice to a client within the meaning of Rule 1.3.

In In re Corrizzi, 803 A.2d 438 (DC 2002), the respondent was found to have committed a number of ethical delicts, of which the most serious involved counseling two clients, in separate cases, to commit perjury on their depositions. These two offenses, which themselves violated several different Rules, including DC Rule 1.3(b)(2) as well as Rules 3.3(a)(2), 3.4(b) and 8.4(c), were held sufficient to warrant disbarment. The Court explained that in this case the lawyer's suborning the clients' perjury had damaged them because it had "virtually destroyed their prospects for recovery in their personal injury claims and it exposed them to criminal prosecution for perjury." Id. at 440.

1.3:300   Promptness

· Primary DC References: DC Rule 1.3(c)
· Background References: ABA Model Rule 1.3, Other Jurisdictions
· Commentary: ABA/BNA § 31:401, ALI-LGL § 16, Wolfram § 10.3

DC Rule 1.3(c) states that "a lawyer shall act with reasonable promptness in representing a client." Comment [7] explains that "perhaps no professional shortcoming is more widely resented by clients than procrastination." Paragraph (c) in part reflects the fact that a client's interests often can be adversely affected by the passage of time or a change of conditions. The provision additionally reflects that "unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness" even when the client's interests are not affected in substance. Comment [7].

A violation of Rule 1.3 commonly occurs when a lawyer has failed to meet a filing deadline, failed to keep in contact with a client, or otherwise failed to handle a client's affairs in a prompt and efficient manner. In In re Lyles, 680 A.2d 408 (DC 1996), the Court of Appeals imposed a six-month suspension on a bankruptcy lawyer whose violations primarily consisted of her failure to file satisfactory bankruptcy plans on behalf of her clients, to correct promptly certain deficiencies in those plans, to remain in contact with her clients, and to take any timely action to prevent the foreclosure of her clients' homes. The court observed that the harm caused by a lawyer's procrastination in a bankruptcy proceeding is "particularly acute." In In re Chisholm, 679 A.2d 495 (DC 1996), the court approved a six-month suspension and restitution of fee as a condition of reinstatement as penalty for a failure, over a period of more than six years, to pursue an appeal from a deportation order, in violation of, inter alia, Rules 1.3(a), 1.3(b)(1) and 1.3(b)(2). In In re Ryan, 670 A.2d 375 (DC 1996), an immigration lawyer violated Rule 1.3 by missing numerous filing deadlines, failing to file an appeal of her client's deportation order, and going on maternity leave without notifying her clients. Similarly, in In re Robertson, 612 A.2d 1236 (DC 1992), the Court found a violation of Rule 1.3 where a tax lawyer negligently failed to file a client's tax returns on time. See also In re Berstein [discussed under 1.3:200, above].

In In re Shelnutt, 719 A.2d 96 (DC 1998), the respondent was found to have violated Rule 1.3(c) when, by reason of respondent's neglect, his client spent extra time in jail awaiting release on bail. Rejecting respondent's argument that because a warrant for the client's arrest was then outstanding, the client had not been harmed, the Court asserted that "Professional disciplinary violations arise from malfeasance, not the actual harm imposed upon a client," and quoted In re Banks, 461 A.2d 1038, 1061 (DC 1983) as asserting that "prejudice to a client is not an element of a charge of neglect, although . . . [it] may be relevant on the issue of sanctions."