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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VI. PUBLIC SERVICE

6.1   Rule 6.1 Pro Bono Publico Service

6.1:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 6.1
· Background References: ABA Model Rule 6.1, Other Jurisdictions
· Commentary:

6.1:101      Model Rule Comparison

The DC Rules differ from the Model Rules by setting forth a lawyer's duty to represent people who cannot afford legal services and his or her duty to seek to improve the legal system in two separate rules. DC Rule 6.1, consisting of a single paragraph, pertains exclusively to a lawyer's duty to "participate in serving those persons, or groups of persons, who are unable to pay all or a portion of reasonable attorneys' fees or who are otherwise unable to obtain counsel." DC Rule 6.4(a) separately discusses a lawyer's obligation to participate in law reform activities.

Model Rule 6.1 , on the other hand, discusses both the lawyer's duty to provide pro bono legal services and to participate in law reform activities. The difference in emphasis between DC Rules 6.1 and 6.4, on the one hand, and MR 6.1 on the other, has been substantially lessened by a thoroughgoing revision of the Model Rule in 1993. The Model Rule now sets up a hierarchy of public service that gives primary emphasis to services to persons of limited means and to organizations that serve them and relegates services to "cause" organizations to secondary status. Paragraph (a) says that a lawyer should devote "the substantial majority" of the lawyer's pro bono time to people unable to afford legal services and organizations that serve them. Paragraph (b) states that a lawyer should also provide "any additional services" to "cause" organizations, reduced fee services and law reform activities. Both the DC Rule and the Model Rule make pro bono service an aspirational goal rather than a mandatory obligation (and the 1993 amendments added the word "Voluntary" to the caption of MR 6.1).

The amendment of the Model Rule in 1993 also specifies an amount of pro bono service that lawyers should aspire to render, i.e., at least fifty hours a year. The text of DC Rule 6.1 does not discuss the number of pro bono hours a lawyer should put in. Comment [5], however, does state that lawyers should be guided by the Resolutions on Pro Bono Services, passed by the Judicial Conferences of the District of Columbia and the DC Circuit from time to time, that call on members of the DC Bar each year, as a minimum, (1) to accept one court appointment, (2) to provide a specified number of hours of pro bono legal service (a figure originally set at 40 hours, but raised effective July 1, 1999 to 50 hours), or (3) to contribute, when personal representation is not feasible, the lesser of $400 (raised from $200 effective July 1, 1999) or one percent of earned income to a legal assistance organization. See DC Ethics Opinion 104 (1981). The DC Rule states that the pro bono services should be provided to "persons or groups of persons" otherwise unable to obtain legal counsel and does not list in as much detail as the Model Rule the types of organizations deserving of pro bono service.

With respect to the financial support of an organization, DC Rule 6.1 clearly states that the lawyer's obligation is, first and foremost, to provide professional services or to participate in the work of organizations that provide professional services. Only when that is "not feasible" should a lawyer's responsibilities under Rule 6.1 be satisfied by financial contributions. MR 6.1 states that a lawyer should voluntarily contribute financial support to legal service organizations in addition to supplying pro bono public service.

The Model Rule was changed in 2002, per recommendations by of Ethics 2000 Commission, by the addition of an initial sentence to the Rule itself, stating that every lawyer has a professional obligation to provide legal services to those unable to pay; and a new Comment [11] stating that law firms and other organizations employing lawyers should act reasonably to enable and encourage all lawyers to provide the pro bono legal service called for by the Rule.  The DC Rules Review Committee recommended and the DC Court of Appeals approved in 2006 a similar final Comment [6] to the DC Rule.

6.1:102      Model Code Comparison

There is no direct counterpart to this Rule in the Model Code, but the Rule reflects principles set forth in Ethical Considerations 1-1, 2-1, 2-16, 2-24, 2-25, 2-29, 2-32 and 8-3. EC 2-25 stated that the "basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer," and that every lawyer, "regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged." EC 8-3 stated "Those persons unable to pay for legal services should be provided needed services." EC 2-16 stated that "persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities designed to achieve that objective." EC 2-29 stated "When a lawyer is . . . requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons."

6.1:200   Lawyer's Moral Obligation to Engage in Public Interest Legal Service

· Primary DC References: DC Rule 6.1, DC Rule 6.4(a)
· Background References: ABA Model Rule 6.1, Other Jurisdictions
· Commentary: ABA/BNA § 91:6001, ALI-LGL § , Wolfram § 16.9

There appear to be no pertinent DC court decisions or ethics opinions on this subject. Comment [1] to the DC Rule, however, explains that Rule 6.1 reflects the longstanding ethical principle underlying Canon 2 of the Model Code, the principle that: "A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available." The Rule, per Comment [2], also expresses the notion that the primary responsibility for providing legal services for those unable to pay "ultimately rests upon the individual lawyer." The lawyer's obligation is described as especially pertinent today because "the rights and responsibilities of individuals and groups in the United States are increasingly defined in legal terms and . . . as a consequence, legal assistance in coping with the web of statutes, rules, and regulations is imperative for persons of modest and limited means, as well as for the well-to-do." Comment [1]. Nonetheless, the lawyer's obligation to provide pro bono legal services, although a bedrock ethical principle underlying the legal profession, is not mandatory. Model Rule 6.1, Comment [1] , expressly states that the Rule is not intended to be enforced through the profession's disciplinary process.

6.2   Rule 6.2 Accepting Appointments

6.2:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 6.2
· Background References: ABA Model Rule 6.2, Other Jurisdictions
· Commentary:

6.2:101      Model Rule Comparison

DC Rule 6.2 is substantially similar to Model Rule 6.2 . Both rules state that "a lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause." Paragraphs (a), (b), and (c) provide three examples of good cause enabling a lawyer to avoid an appointment. DC Rule and MR 6.2(a) and (c) are identical; both permit a lawyer to avoid an appointment where the representation is likely to violate rules of professional conduct or the client or cause is so repugnant to the lawyer that the repugnance will impair the client-lawyer relationship or the lawyer's ability to represent the client. The language of DC Rule 6.2(b), however, departs from that in MR 6.2(b) by omitting the word "financial" and substituting "substantial and unreasonable burden" for "unreasonable burden." Accordingly, the DC Rule permits a lawyer to decline a representation if it is likely to "result in a substantial and unreasonable burden," financial or otherwise, on the lawyer.

No changes in the Model Rule were recommended by the Ethics 2000 Commission, and none were included among the changes made by the ABA House of Delegates in 2002. Similarly, the DC Rules Review Committee recommended no changes to the DC Rule, and none were included in the changes accepted by the DC Court of Appeals in 2006.

6.2:102      Model Code Comparison

There was no counterpart to this Rule in the Model Code. EC 2-29 stated that when a lawyer is "appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons." EC 2-30 stated that a lawyer "should decline employment if the intensity of his personal feelings, as distinguished from a community attitude, may impair his effective representation of a prospective client."

6.2:200   Duty to Accept Court Appointments Except for Good Cause

· Primary DC References: DC Rule 6.2
· Background References: ABA Model Rule 6.2, Other Jurisdictions
· Commentary: ABA/BNA § 91:6201, ALI-LGL § 14, Wolfram § 16.9

There appear to be no pertinent DC court decisions or ethics opinions on this subject. Rule 6.2 sets forth the "good cause" standard under which a lawyer is permitted to refuse an appointment and, without defining "good cause," provides three examples of good cause: (1) when the representation is likely to result in a violation of the rules of professional conduct; (2) when the representation is likely to result in a substantial or unreasonable burden on the lawyer; and (3) when the client or the cause is so repugnant to the lawyer that it will impair the client-lawyer relationship or the lawyer's ability to represent the client. Comment [2] goes on to state with more specificity that good cause exists if the lawyer could not handle a matter competently or if undertaking the representation would result in an improper conflict of interest. The Comment also explains that included among the "substantial and unreasonable burdens" permitting a lawyer to refuse an appointment are "financial sacrifice[s] so great as to be unjust." Finally, Comment [1] explains that a lawyer has a responsibility under Rule 6.1 to accept his or her fair share of clients that are repugnant to the lawyer, although a lawyer ordinarily is not obliged to accept such clients.

6.3   Rule 6.3 Membership in Legal Services Organization

6.3:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 6.3
· Background References: ABA Model Rule 6.3, Other Jurisdictions
· Commentary:

6.3:101      Model Rule Comparison

The DC Rule is identical to the Model Rule. DC Rule 6.3 and Model Rule 6.3 state that a lawyer may serve as a "director, officer, or member of a legal services organization," even though the organization serves persons having interests adverse to a client of the lawyer. Paragraph (a) states, however, that a lawyer shall not knowingly participate in a decision or action of the organization if such participation "would be incompatible with the lawyer's obligations to a client under Rule 1.7," which relates to conflicts of interest. Paragraph (b) states that a lawyer shall not knowingly participate in a decision or action if such participation "could have a material adverse effect on the representation of a client of the organization whose interests are adverse to the client of the lawyer."

No changes in the Model Rule were recommended by the Ethics 2000 Commission, and none were included among the changes made by the ABA House of Delegates in 2002. Similarly, the DC Rules Review Committee recommended no changes to the DC Rule, and none were included in the changes accepted by the DC Court of Appeals in 2006.

6.3:102      Model Code Comparison

There was no counterpart to this Rule in the Model Code. EC 2-33 provided that "attorneys are encouraged to cooperate with qualified legal assistance organizations providing prepaid legal services," and that "[s]uch participation should at all times be in accordance with the basic tenets of the profession: independence, integrity, competence and devotion to the interests of individual clients."

6.3:200   Conflicts of Interest of Lawyers Participating in a Legal Services Organization

· Primary DC References: DC Rule 6.3
· Background References: ABA Model Rule 6.3, Other Jurisdictions
· Commentary: ABA/BNA § 91:6401, ALI-LGL § 135, Wolfram § 16.7.4

There appear to be no pertinent DC court decisions or ethics opinions on this subject. Comment [1] does state, however, that a lawyer who is an officer or a member of a legal services organization does not have a lawyer-client relationship with persons served by the organization. The comment explains that if the potential conflict between the interests of the organization's clients and interests of the lawyer's clients resulted in the disqualification of the lawyer, then the legal profession's involvement in such organizations would be severely curtailed. To reassure clients with respect to potential conflicts of interest, Comment [2] recommends that organizations have "[e]stablished, written policies" dealing with conflicting interests of board members.

6.4   Rule 6.4 Law Reform Activities Affecting Client Interests

6.4:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 6.4(b)
· Background References: ABA Model Rule 6.4, Other Jurisdictions
· Commentary:

6.4:101      Model Rule Comparison

Paragraph (a) of DC Rule 6.4, stating that a lawyer should assist in "improving the administration of justice," as by participating in activities intended to improve the law, the legal system, or the legal profession, is unique to the DC Rules, though its subject is addressed in a more summary manner by Model Rule 6.1(b)(3).  [See 6.1:101, above.] The DC Rule is accompanied by a Comment [1] that elaborates at some length on the importance of maintaining and improving on the legal system, and the special responsibility of lawyers therefor. The corresponding Comment [8] to Model Rule 6.1, explaining that Rule's subparagraph (b)(3), is again more summary than its DC counterpart.

DC Rule 6.4(b), on the other hand, is identical to the single paragraph constituting Model Rule 6.4, both stating that a lawyer may serve as a "director, officer, or member of an organization involved in the reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer."  Both also provide that, when the lawyer knows that a client's interests may be "materially benefited," the lawyer shall disclose that fact but need not identify the client. Comment [2] to the DC Rule is likewise almost identical to the single Comment following the Model Rule.

No changes in the Model Rule were recommended by the Ethics 2000 Commission, and none were included among the changes made by the ABA House of Delegates in 2002. Similarly, the DC Rules Review Committee recommended no changes to the DC Rule, and none were included in the changes accepted by the DC Court of Appeals in 2006.

6.4:102      Model Code Comparison

There was no counterpart to Rule 6.4 in the Model Code. The Rule reflects the policy underlying Canon 8 that "[a] lawyer should assist in improving the legal system." EC 8-1 stated that "lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein." EC 8-2 stated that "[i]f a lawyer believes that the existence or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result, he [or she] should endeavor by lawful means to obtain appropriate changes in the law." EC 8-9 stated that "[t]he advancement of our legal system is of vital importance," and "therefore, lawyers should encourage, and should aid in making, needed changes and improvements."

6.4:200   Conflicts of Interest of Lawyers Participating in Law Reform Organizations

· Primary DC References: DC Rule 6.4(b)
· Background References: ABA Model Rule 6.4, Other Jurisdictions
· Commentary: ABA/BNA § 91:6401, Wolfram § 13.8

Comment [1] states that lawyers involved in organizations seeking to reform the law generally do not have a lawyer-client relationship with the organization, thereby permitting a lawyer to remain involved with an organization that indirectly affects a client of the lawyer. The lawyer, however, must be mindful of obligations to clients under Rule 1.7, the primary rule dealing with conflicts of interest. The comments explain that a lawyer specializing in antitrust litigation, for example, might be disqualified from drafting revisions of rules governing that subject. See DC Rule 6.4, Comment [1].

DC Ethics Opinion 204 (1989) states that a law firm that represents clients before an administrative agency is not, as a general matter, ethically precluded from submitting comments on its own behalf in response to a notice of proposed rulemaking issued by the agency. The Opinion then goes on to conclude, however, that the law firm may not submit any comments if (1) the firm represents, at the time the comments are submitted, clients with agency filings pending or imminent and (2) the subject matter of the law firm's comments could prejudice a client's filing before the agency.

DC Ethics Opinion 231 (1992) involved a lawyer and member of the D.C. Council who was required to vote on legislation concerning physician liability potentially affecting future clients of the lawyer's firm. The Opinion stated that a lawyer who is also a legislator voting on legislation potentially prejudicing clients of the lawyer's firm would not be violating the prohibition of DC Rule 1.3(b)(2) on intentionally damaging a client because any prejudice "would seem an incidental consequence of the legislator's exercise of public duties"; and that the lawyer/legislator would not violate Rule 1.7, on conflicts, because there was no suggestion that his actions as a legislator would affect his professional judgment in the representation of clients.

6.5   Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs

6.5:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 6.5
· Background References: ABA Model Rule 6.5, Other Jurisdictions
· Commentary:

6.5:101      Model Rule Comparison

This new DC Rule, adopted by the DC Court of Appeals in 2006 on the recommendation of the DC Bar Pro Bono Committee and the DC Rules Review Committee, is in all respects but one identical to the new Model Rule 6.5, proposed by the Ethics 2000 Commission and adopted by the ABA House of Delegates in 2002. The Rule reflects a concern that strict application of the conflict of interest rules might deter lawyers from serving as volunteers in programs in which clients are provided short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program. The paradigm of the sort of circumstances in which such a problem might arise is the legal-advice hotline or pro se clinic, whose purpose is to provide short-term limited legal assistance to persons of limited means who otherwise would go unrepresented. To deal with the problem, the Rule limits the imputation of conflicts between such a volunteer lawyer and the lawyer's firm under Rules 1.7, 1.9(a) and 1.10 to those in which the volunteer lawyer knows of a conflict between a limited representation pursuant to such a program and a representation by the firm, or that another lawyer with the firm would be disqualified from the representation.

The sole respect in which the DC Rule or its Comments vary from the Model Rule is that DC Rule has a Comment [6] that the Model Rule does not have. That Comment points out that paragraph (e) of DC Rule 1.10 (which is also lacking in Model Rule 1.10) provides a somewhat similar suspension of disqualification for lawyers affiliated with a firm who provide legal advice to designated agencies of the District of Columbia Government.

6.5:200   Scope of Rule

· Primary DC References:
· Background References: ABA Model Rule 6.5, Other Jurisdictions
· Commentary:

DC has not adopted the new model rule.

6.5:300   Special Conflict of Interest Rule

· Primary DC References:
· Background References: ABA Model Rule 6.5, Other Jurisdictions
· Commentary:

DC has not adopted the new model rule.