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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

II. COUNSELOR

2.1   Rule 2.1 Advisor

2.1:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 2.1
· Background References: ABA Model Rule 2.1, Other Jurisdictions
· Commentary:

2.1:101      Model Rule Comparison

The only changes recommended by the Ethics 2000 Commission with respect to Model Rule 2.1 were in Comment [5]: there, it added a sentence reminding lawyers that informing a client of various forms of dispute resolution may be required by Rule 1.4 when a different form of dispute resolution would be a reasonable alternative to litigation. It also proposed some other minor and  non-substantive changes in the wording of the Comment for "clarification and style." The DC Rules Review Committee proposed, and the Court approved, the addition to Comment [5] of the DC Rule of a sentence to the same effect as the one added to the Model Rule's Comment, albeit more clearly phrased. It did not otherwise tinker with the wording of the Comment.

2.1:102      Model Code Comparison

There is no direct counterpart to this Rule in the Model Code. Canon 5 asserted that a "lawyer should exercise independent professional judgment on behalf of a client;" the first sentence of Rule 2.1 makes this precept mandatory. DR 5-107(B), whose most direct descendant in the Rules is Rule 5.4(c), provided that a lawyer "shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services." EC 7-8, which is in effect the forerunner of the second sentence of Rule 2.1, stated that "[a]dvice of a lawyer to his client need not be confined to purely legal considerations . . . . In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible . . . ."

2.1:200   Exercise of Independent Judgment

· Primary DC References: DC Rule 2.1
· Background References: ABA Model Rule 2.1, Other Jurisdictions
· Commentary:
ABA/BNA § 31:701, ALI-LGL § 151, Wolfram § 4.3

Although Rule 2.1 is a separate, comprehensive statement of the obligation to use independent professional judgment, it is less likely to be invoked in court decisions, ethics committee opinions or disciplinary proceedings -- and, indeed, there appear to have been none in DC -- than the rules that address specific threats to such independence of judgment: DC Rules 1.7(b) and 1.8(f) if the lawyer's judgment may be jeopardized by allegiance to other clients; DC Rules 1.7(b), 1.8(b), (e) and (h) and 5.4 if the lawyer's judgment may be affected by allegiance to a third person; and DC Rules 1.8(a), (b), (c) and (g) where the lawyer's judgment may be affected by the lawyer's own interests.

2.1:300   Non-Legal Factors in Giving Advice

· Primary DC References: DC Rule 2.1
· Background References: ABA Model Rule 2.1, Other Jurisdictions
· Commentary: ABA/BNA § 31:701, ALI-LGL § 94, Wolfram § 4.3

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

2.2   Rule 2.2 Intermediary

2.2:100   Comparative Analysis of DC Rule

· Primary DC References: Former DC Rule 2.2
· Background References: ABA Model Rule 2.2, Other Jurisdictions
· Commentary:

2.2:101      Model Rule Comparison

The Ethics 2000 Commission recommended deleting Model Rule 2.2 and moving any discussion of common representation to the Comments following Rule 1.7. The DC Rules Review Committee agreed with the Commission's view, and recommended that DC Rule 2.2, which was identical to the former Model Rule, should be rescinded because the relationship between Rules 1.7 and 2.2 was confusing and issues relating to intermediation could be satisfactorily addressed by Rule 1.7 and its Comments. Thus, the new/revised Comments [14] through [18] to DC Rule 1.7, under the caption Special Considerations in Common Representations, were derived from the commentary to former DC Rule 2.2. (See 1.7:101, above.)

2.2:102      Model Code Comparison

There was no direct counterpart to this Rule in the Model Code. DR 5-105(B) and (C) dealt in less detail with the general topic of multiple representation. EC 5-20 stated that a "lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. He may serve in either capacity if he first discloses such . . . relationships."

2.2:200   Relationship of Intermediation to Joint Representation

· Primary DC References: Former DC Rule 2.2
· Background References: ABA Model Rule 2.2, Other Jurisdictions
· Commentary: ABA/BNA Former § 51:1504; Wolfram §§ 8.7, 13.6

DC Ethics Opinion 296 (2000) [which is more fully discussed under 1.7:330, above] commented on the close similarity between a lawyer representing multiple clients under Rule 1.7, on the one hand, or acting as intermediary for the same parties with respect to the same matter under Rule 2.2, on the other. In both situations, a lawyer owes each of the parties on whose behalf he or she is acting obligations both to preserve client confidences under Rule 1.6 and to keep the clients informed, under Rule 1.4, and if both obligations cannot be met, the lawyer must withdraw. In the particular circumstances there addressed, a law firm jointly represented an employer and its alien employee in seeking a visa for the employee, without any advance understanding as to whether client confidences with respect to the representation would be shared, a problem arose because the employee client disclosed to the law firm that she had fabricated the credentials on which the visa had been based, and the law firm, unable to disclose this information to the employer client, had to withdraw from the represenetation..

DC Ethics Opinion 247 (1994) concerned a lawyer who had performed services for both seller and purchaser in a residential real estate transaction; the lawyer had been selected by the purchaser but had been the only lawyer involved in the transaction. The lawyer was subsequently asked to represent the purchaser in a potential lawsuit alleging blatant defects in the property. The issues addressed by the opinion were whether the lawyer was barred, absent consent of the seller, from undertaking the representation; and whether if so another lawyer associated with him as "of counsel" would also be disqualified. In addressing the first issue, the opinion noted that both Rule 2.2 and Rule 4.3 (on lawyers dealing with unrepresented persons) emphasize the importance of "making the lawyer's role, duties, and non-duties clear when those matters could be misunderstood by the multiple participants in a matter"; and, since it had not been made clear at the outset that the lawyer was representing only the purchaser in the real estate transaction, the lawyer was indeed disqualified from representing the purchaser in a dispute with the seller.

DC Ethics Opinion 217 (1991) addressed a firm's proposed representation of a group of three claimants, jointly, against other individual claimants or groups of claimants to a limited fund. The Opinion concluded that the proposed representation, insofar as it involved the shared interests of the represented group as against others, would not be barred by Rule 1.7; that Rule 1.7 would bar the firm from acting as advocate for any of the clients with respect to the allocation of any award among them; but that the firm could serve as an intermediary in determining the allocation among its clients, pursuant to Rule 2.2.

2.2:300   Preconditions to Becoming an Intermediary

· Primary DC References: Former DC Rule 2.2(a) & (b)
· Background References: ABA Model Rule 2.2(a), Other Jurisdictions
· Commentary: ABA/BNA Former § 51:1506, ALI-LGL § 153, Wolfram § 8.7, 13.6

DC Ethics Opinion 276 (1997) held that a lawyer acting as mediator pursuant to a court-sponsored alternative dispute resolution program is not governed by Rule 2.2, because the parties to the mediation are not clients of the lawyer. [Opinion 276 is more fully discussed under 1.7:210, above.]

DC Ethics Opinion 243 (1993) responded to an inquiry from a lawyer who was also an ordained minister and had been doing domestic relations mediation work. The inquirer proposed to start a private law practice in which she would jointly represent divorcing spouses pursuant to Rule 2.2, in attempting to mediate the terms of the divorce, including terms of custody if there were children; and, if the mediation was successful, drafting and filing necessary agreements and representing both spouses in court. The opinion concluded that it was not permissible under Rule 2.2, and indeed forbidden by Rule 1.7(a), for the lawyer jointly to represent a divorcing husband and wife who seek assistance in reaching agreement as to the terms of their divorce. The Opinion noted that the earlier DC Ethics Opinion 143 (1984), applying DR 5-105 and DR 7-101 of the former DC Code, had concluded that as a general rule joint representation of a couple seeking a divorce was not ethically permissible; although in the circumstances there addressed, where the parties seeking joint representation were childless, had relatively equal employment status and educational background and had already agreed upon a division of property and all substantial settlement terms before retaining counsel, such a joint representation would be permissible. Opinion 243 concluded that the earlier opinion continued to be sound, in allowing a joint representation in the particular circumstances there addressed; but that a joint representation where the terms of the divorce were not already agreed involved too sharp a conflict between the interests of the clients to lend itself to intermediation pursuant to Rule 2.2. The opinion noted that nothing prevented a lawyer acting as mediator for spouses seeking a divorce so long as no client/lawyer relationship was established.

2.2:400   Communication During Intermediation

· Primary DC References: Former DC Rule 2.2(c)
· Background References: ABA Model Rule 2.2(b), Other Jurisdictions
· Commentary: ABA/BNA Former § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6

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

2.2:500   Consequences of a Failed Intermediation

· Primary DC References: Former DC Rule 2.2(d)
· Background References: ABA Model Rule 2.2(c), Other Jurisdictions
· Commentary: ABA/BNA Former § 51:1501, ALI-LGL § 153, Wolfram § 8.7, 13.6

In Green v. Newman, 385 A.2d 171 (DC 1978), the court held that it was improper to appoint a law student to represent a defendant as an advocate, where the law student had previously been involved as conciliator in the same case.

2.3   Rule 2.3 Evaluation for Use by Third Persons

2.3:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 2.3
· Background References: ABA Model Rule 2.3, Other Jurisdictions
· Commentary:

2.3:101      Model Rule Comparison

Prior to the changes made in Model Rule 2.3 in 2002 pursuant to recommendations of the Ethics 2000 Commission, DC Rule 2.3 was identical to the Model Rule except that it omitted Comment [2], addressing formal opinions provided to government agencies by government lawyers. That omission had been recommended by the Sims Committee, which had  observed that "[a]s written, the [Comment] provides little guidance." The Ethics 2000 Commission proposed omitting that Comment for essentially the same reason, namely, that "neither its meaning nor its function is clear." The Commission also recommended the addition of a new paragraph (b) to the text of the Rule to make clear that the Rule contemplates two distinct circumstances where a lawyer may provide an evaluation for use by third person: when it is implicit in the lawyer's engagement; and, with the client's informed consent, when the evaluation is likely to affect the client's interests materially and adversely. The Commission also added a new Comment [5] elaborating on the new paragraph (b), and made some small language changes in the other two paragraphs of the Rule and in the remaining Comments. The DC Rules Review Committee recommended, and the Court agreed, that DC Rule 2.3 be similarly revised, so as to be once more identical to the Model Rule.

2.3:102      Model Code Comparison

There was no counterpart to this Rule in the Model Code.

2.3:200   Undertaking an Evaluation for a Client

· Primary DC References: DC Rule 2.3
· Background References: ABA Model Rule 2.3, Other Jurisdictions
· Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4

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

2.3:300   Duty to Third Persons Who Rely on Lawyer's Opinion [see also 1.1:420]

· Primary DC References: DC Rule 2.3
· Background References: ABA Model Rule 2.3, Other Jurisdictions
· Commentary: ABA/BNA § 71:701, ALI-LGL § 95, Wolfram § 13.4.4

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

2.3:400   Confidentiality of an Evaluation

· Primary DC References: DC Rule 2.3
· Background References: ABA Model Rule 2.3, Other Jurisdictions
· Commentary: ABA/BNA § 71:704, ALI-LGL § 95, Wolfram § 13.4.3

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

2.4   Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 2.4
· Background References: ABA Model Rule 2.4, Other Jurisdictions
· Commentary:

2.4:101      Model Rule Comparison

Model Rule 2.4 is another of the Rules added to the Model Rules in 2002 on the recommendation of the Ethics 2000 Commission.  The DC Rules Review Committee recommended, and the Court agreed, that an identical Rule, with identical Comments, be added to the DC Rules. That Committee also noted that DC Rule 1.12 already addressed the ability of former arbitrators to represent clients in related matters, and that it had recommended that that Rule be expanded to cover third-party neutrals as well. It also noted that in DC Ethics Opinion 276 (1997), the Legal Ethics Committee had discussed the ethical obligations of lawyer neutrals to conduct a conflicts check. And it observed that the DC Court of Appeals had not yet addressed the matters dealt with in the new Rule 2.4.

2.4:200   Definition of "Third-Party Neutral"

· Primary DC References:
· Background References: ABA Model Rule 2.4, Other Jurisdictions
· Commentary:

DC has not adopted the new model rule.

2.4:300   Duty to Inform Parties of Nature of Lawyer's Role

· Primary DC References:
· Background References: ABA Model Rule 2.4, Other Jurisdictions
· Commentary:

DC has not adopted the new model rule.