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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.4   Rule 1.4 Communication

1.4:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 1.4
· Background References: ABA Model Rule 1.4, Other Jurisdictions
· Commentary:

1.4:101      Model Rule Comparison

DC Rule 1.4(a) and (b) are identical to Model Rule 1.4(a) and (b). Paragraph (c) of the DC Rule, which has no counterpart in the black letter Model Rules, sets out a requirement that a lawyer who receives an offer of settlement in a civil case or a proffered plea bargain in a criminal case must communicate it promptly to the client. Comment [1] to the Model Rule says a lawyer should promptly communicate such an offer, unless prior discussions with the client have made it clear that the offer is unacceptable, but the DC Rule changes the precatory should to a mandatory must, in terms eliminates the exception resting on prior discussions with the client, and puts the provision into the black letter text (while amending Comment [1] correspondingly). The addition of paragraph (c) to the DC Rule resulted from a proposal of the DC Bar's Legal Ethics Committee to amend DR 7-104(A)(1) (the predecessor of Rule 4.2) to include such a requirement -- a proposal that was superseded by the development of the Model Rules. The Ethics Committee's proposal reflected advice of the Office of Bar Counsel that there was a recurring problem of lawyers apparently failing to communicate such offers to clients. The Jordan Committee chose to make this change in Rule 1.4 rather than Rule 4.2.

The ABA Ethics 2000 Commission recommended and the ABA adopted a number of changes to Model Rule 1.4, identifying with greater specificity the various elements of the lawyer's duty to keep the client reasonably informed about the status of a matter, and consolidating all discussions of the duty to communicate in that Rule.  A number of changes were also made in the Comments to the Model Rule, significantly expanding the discussion regarding communications with the client and providing examples and suggesting "best practices."  The DC Rules Review Committee considered the ABA's changes, but preferred to stick with the DC Rule as it stood, noting in particular that "the obligation to communicate settlement offers to the client is sufficiently important that it should be retained in the text of Rule 1.4(c) rather than be included as a comment."

1.4:102      Model Code Comparison

Rule 1.4 had no direct counterpart in the Model Code, although DR 6-101(A)(3) provided that a lawyer must not "neglect a legal matter entrusted to him," and DR 9-102(B)(1) [DR 9-103(B)(1) in the DC Code] required that a lawyer promptly notify a client of receipt of funds and other properties. In addition, EC 7-7 stated that it was for the client to decide whether to accept a settlement offer or waive an affirmative defense; EC 7-8 said a lawyer should "exert his best efforts" to insure that the client's decisions were fully informed; and EC 9-2 stated that "a lawyer should fully and promptly inform his client of material developments."

1.4:200   Duty to Communicate with Client

· Primary DC References: DC Rule 1.4
· Background References: ABA Model Rule 1.4, Other Jurisdictions
· Commentary: ABA/BNA § 31.501, ALI-LGL § 20, Wolfram §§ 4.5, 4.6

In United States v. Morrison, 98 F.3d 619 (DC Cir 1996), the court observed that a lawyer need not "as a general matter, inform the client of every incidental tactical decision he or she will implement at trial," citing MR 1.4, Comment [2]. The context was a claim of ineffective assistance of counsel, turning on counsel's having allowed the government to introduce in evidence a tape recording made by an informer in a conversation with the defendant, which was susceptible to both an inculpatory and an exculpatory interpretation.

In disciplinary cases, a violation of Rule 1.4 appears invariably to be found in conjunction with violations of other rules as well -- typically one or more of Rules 1.1 (competence), 1.2 (scope of representation), and 1.3 (diligence), and sometimes others. Thus, in In re Roxborough, 675 A.2d 950 (DC 1996), the court approved an increase in the severity of a 30-day suspension by the additional imposition of a requirement of a showing of fitness before reinstatement, in a case in which the Board on Professional Responsibility had found violations of Rules 1.3(c) (failure to act with reasonable promptness), 5.1(b) (failure to supervise associate) and 1.1 (failure to provide competent representation), as well as Rule 1.4(a). The court adopted the Board's characterization of the case as involving "a total disregard of the interests of a client, a failure to provide even the most minimal representation and to take the most basic steps to protect the client, an extreme case of what the hearing committee rather charitably concluded was 'neglect and inattention' rather than intentional failure to seek the lawful objectives of the client." Id. at 952. See also In re Berstein, 707 A.2d 371 (DC 1998) [discussed under 1.3:200, above].

In In re Outlaw, 917 A.2d 684 (DC 2007), the respondent had been found to have violated DC Rules 1.1(a) and (b) and 1.3(a) by negligently allowing the statute of limitations on the client’s tort claim to expire before initiating meaningful negotiations with the defendant’s insurer [as explained more fully under 1.1:220 and 1.3:200, above], and in addition was found to have violated DC Rule 1.4(a) by failing to advise her client in a timely fashion of her mistake and Rule 1.4(b) by failing to explain the matter to the extent necessary for the client to make an informed decision about the representation. Because the respondent was found to have deliberately avoided disclosing to the client the true posture of the case, her misconduct was held to have violated DC Rule 8.4(c) as well.

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 1.4(a)'s requirement that a lawyer keep the client reasonably informed about the status of a matter. 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. A point the Court made about the Rule 1.4(a) violations was that under that Rule "lawyers not only must respond to client inquiries but also must initiate contact to provide information when needed." Id. at 915.

In In re Ryan, 670 A.2d 375 (DC 1996), the court approved the imposition of a four-month suspension with a requirement of proof of fitness before reinstatement, and payment of restitution to certain clients, for a pattern of neglect of immigration clients involving violations of eight different provisions of the Code and of the Rules, including a failure to keep a client informed of a matter in violation of Rule 1.4(a).

In In re Sumner, 665 A.2d 986 (DC 1995), the court approved the imposition of a thirty-day suspension on a lawyer who had violated several of the rules, including Rule 1.4(a), by failing to keep his client reasonably informed of how he could be reached or to inform the client that court deadlines had been set that the lawyer would not meet.

DC Ethics Opinion 327 (2005) [which is discussed more fully under 1.7:330, below] addressed a joint representation in which the law firm’s retainer agreement expressly provided that any information disclosed in connection with the representation “may be shared” with the other clients in the same matter.  The Opinion held that the law firm had an affirmative obligation under Rule 1.4 to disclose any information bearing on the representation that might affect the interests of the non-disclosing clients once it learned the information, even if the law firm knew that the disclosing client did not wish to reveal the information to the other clients.

DC Ethics Opinion 296 (2000) [which is discussed more fully under 1.7:330, below] pointed out that in a joint representation a lawyer owes each client obligations both to preserve client confidences under Rule 1.6 and to keep the client informed, under Rule 1.4; and that if one client reports a confidence that may not be shared with the other client, but whose disclosure to that client is required under Rule 1.4, the lawyer has a conflict that requires withdrawal from the representation of both clients. 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, and the problem arose because the employee disclosed to the law firm that she had fabricated the credentials on which the visa had been based.

DC Ethics Opinion 282 (1998) (which is more fully discussed under 1.6:320, below) held that a lawyer who proposes to engage a social worker to provide services in connection with a representation must inform the client that the social worker may be obligated by statute to report suspected child abuse or neglect, and must leave to the client the decision whether to engage the social worker.

DC Ethics Opinion 273 (1997) addresses a number of ethical issues relating to movement of lawyers between firms, which are the subject of frequent inquiries to the Bar's ethics counsel. One such issue concerns communications with clients. The Opinion holds that Rule 1.4, imposing an obligation on a lawyer to keep a client informed about the status of a matter and to explain a matter to the extent reasonably necessary to permit the client to make informed decisions, in most circumstances will require the lawyer to communicate the prospective change of affiliation to the client, and to do so sufficiently in advance of the departure to give the client adequate opportunity to consider by whom it wants to be represented. The Opinion goes on to say that the lawyer's communication should state the fact and the date of the change in affiliation and whether the lawyer wishes to continue the representation, and that the lawyer should be prepared to provide the client with information about the new firm sufficient to enable the client to make an informed decision -- including any pertinent information regarding conflicts of interest affecting representation by the lawyer's new firm. The Opinion also notes, however, that communications exceeding the foregoing requirements imposed by the ethical rules -- "for example, an active solicitation of the client to leave the lawyer's current firm and join the lawyer at the new firm" -- could run afoul of the lawyer's obligations under partnership law, corporate law or the common law of obligations of employees. And, the Opinion notes, under such law a departing lawyer "may also be obliged to inform the lawyer's firm, at or around the time the lawyer so notifies clients," of the planned departure; but observes that there appears to be no ethical significance to whether the client or the lawyer is first informed. The Opinion notes that another question frequently posed to the Bar's ethics counsel is whether a departing lawyer, prior to departure, may recruit other lawyers or non-lawyer personnel to accompany the lawyer to the new firm; it observes that this issue depends primarily if not entirely on law other than ethics law, such as the common law of interference with business relations and fiduciary obligations.

Opinion 273 also addresses the issue of what files or other documents a departing lawyer may take with him or her in leaving a firm, observing that this question is only partially answered by the Rules of Professional Conduct. As to client files, the initial inquiry is as to who will continue to represent the client after the lawyer's change of affiliation, which is determined by Rule 1.16(d)'s requirement that the lawyer who parts company with the client must "surrender . . . papers and property to which the client is entitled . . . ." After noting prior opinions with regard to the limited availability of retaining liens to secure unpaid fees, under the DC Rules, the Opinion observes that other questions of ownership, as between lawyer and client, and between departing lawyer and departed firm, are not governed primarily by the Rules of Professional Conduct, but rather by statutory and common law rules. The Opinion also points out that when a lawyer has departed for another firm, Rule 7.5(a)'s prohibition on use of a firm name that is misleading requires omission of the lawyer's name from the name of the former firm. And the Opinion points out that the lawyer's obligation to protect confidences and secrets of clients under Rule 1.6 continues as to clients left behind in the former firm and applies as well to confidential information in documents the lawyer brings along to the new firm. The Opinion also addresses retaining liens under DC Rule 1.8(i) [see 1.8:101, below] and disqualifications, relating to clients of the migrating lawyer's former law firm, under Rule 1.10(b) [see 1.9:300, below].

DC Ethics Opinion 270 (1997), discussed more fully under 1.16:500 below, held that where a subordinate lawyer learns that an employing lawyer has sent a client what purports to be copies of correspondence written on the client's behalf, but where the letters were in fact never sent, the subordinate lawyer, if continuing to represent the client, has a duty under Rule 1.4 to see to it that the client is informed of the deception.

DC Ethics Opinion 252 (1994) discussed the obligations of a lawyer appointed guardian ad litem in a child abuse and neglect proceeding with respect to potential tort claims of the child. The opinion concluded that although such a guardian ad litem does not have an obligation to initiate tort claims on behalf of a child, nonetheless the lawyer/guardian who identifies significant potential claims is obligated by, inter alia, Rule 1.4 to notify the child or those responsible for the child's care of the potential claims.

DC Ethics Opinion 238 (1993) relied on Rule 1.4(a) as well as Rule 1.5(b) in concluding that, when a written fee agreement is required, the agreement must adequately inform the client of the basis or rate of the fee. [See also discussion of Opinion 238 under 1.5:210, below.]

DC Ethics Opinion 221 (1991) addressed an employment agreement between a firm and its lawyers that limited communications by a departing lawyer with clients of the firm. The Opinion referred to Rule 1.4 in holding that such a restriction, insofar as it prohibited the departing lawyer from responding to client-initiated inquiries, was impermissible.

Under the Code, failures to communicate with a client were generally addressed under DR 6-101(A)(3). See, e.g., In re Rosen, 470 A.2d 292 (DC 1983).

DC Ethics Opinion 116 (1982), interpreting DR 6-101(A)(3), inter alia, held that in ordinary circumstances a lawyer who drafts a will for a client is not ethically obliged to inform the client of subsequent changes in the law that might make a change in the will desirable, nor obliged so to advise former clients; but does have such an obligation where the client has entrusted his or her estate planning to the lawyer on a continuing basis.

1.4:300   Duty to Consult with Client

· Primary DC References: DC Rule 1.4(b)
· Background References: ABA Model Rule 1.4(b), Other Jurisdictions
· Commentary: ABA/BNA § 31.501, ALI-LGL § 20, Wolfram §§ 4.5

In In re Chisholm, 679 A.2d 495 (DC 1996), the court approved the imposition of a six-month suspension and payment of restitution on a lawyer arising out of his failure over a period of more than six years to pursue an appeal from a deportation order entered against his client. This failure was found to involve the violation of numerous rules including Rule 1.4(a) and (b), for failure to keep the client reasonably informed about the status of the matter and failure to explain the matter to the client to the extent reasonably necessary to permit the client to make informed decisions.

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).

DC Ethics Opinion 256 (1995) addressed the problem of inadvertent disclosure of privileged information to opposing counsel, concluding, inter alia, that a lawyer who does not learn of the inadvertence until after reading the privileged material (i.e., who was not forewarned that material was transmitted by mistake) is free to make use of the material in furtherance of the representation of the lawyer's client. The Opinion observed in a footnote (n. 7), however, that this did not imply that a lawyer must retain or use inadvertently disclosed materials but suggested that, depending on the significance of the documents, this might be a matter on which consultation with the client is necessary, under Rules 1.2(a) and 1.4(b). [Opinion 256 is also discussed at 1.6:220 and 8.4:400 below.]

DC Ethics Opinion 235 (1993) held (at a time when DC law did not yet provide for the creation of "limited liability partnerships" or "limited liability companies") that lawyers in a firm organized under the law of another jurisdiction as one of those kinds of entities could practice in the District of Columbia under the name of the firm, provided that the name used included the full identifying phrase, and not merely the abbreviation "LLP" or "LLC". The opinion observed in passing that Rules 1.4(b) and 7.1(a) were satisfied by use of the abbreviation "PC" or "PA" in the case of an incorporated law firm, since DC law specifically provided for such entities. [This opinion has effectively been overruled by amendment of the DC Code to authorize both LLPs (DC Code § 41-143 to 148) and LLCs (DC Code § 29-1301 et seq.).]

DC Ethics Opinion 228 (1992) held that, although a lawyer is likely to be disqualified by Rule 3.7 from representing a client at trial because the lawyer is a necessary witness, this does not disqualify the lawyer from continuing the representation in pretrial matters. It also observed that, once it becomes apparent that a lawyer likely will be disqualified under Rule 3.7, the lawyer is obliged by Rule 1.4(b) to inform the client of this development and seek the client's consent to continued pretrial representation.

1.4:400   Duty to Inform the Client of Settlement Offers

· Primary DC References: DC Rule 1.4(c)
· Background References: ABA Model Rule 1.4, Other Jurisdictions
· Commentary: ABA/BNA § 31.501, ALI-LGL § 20, Wolfram §§ 4.5

As noted under 1.4:101 above, DC Rule 1.4 includes in paragraph (c) a requirement that a lawyer who receives an offer of settlement in a civil case or a proffered plea bargain in a criminal case inform the client promptly of the substance of the offer. In the Model Rule, this is treated only in Comment [1], and there only with the precatory verb should.

In In re Peartree, 672 A.2d 574 (DC 1996), the court approved imposition of reciprocal discipline on the basis, inter alia, of the failure of the respondent to communicate a settlement offer, which would have been a violation of DC Rule 1.4(c) (and Rule 1.4(a) as well).

In DC Ethics Opinion 263 (1996), the inquirer was a lawyer representing victims of domestic violence in proceedings in Superior Court. One remedy for such clients is a Civil Protective Order (CPO), prohibiting the respondent-perpetrator from coming into physical proximity of the petitioner-victim. When a CPO is violated, the petitioner may bring a motion for criminal contempt against the respondent, and in such a case, an indigent respondent is entitled to have counsel appointed to represent him in the criminal contempt proceeding. The petitioner may also move to modify the terms of the CPO to make it more inclusive, but the lawyer appointed to defend against the contempt motion will not necessarily represent the respondent in respect of the motion to modify. The principal question presented was whether, in a case in which the appointed lawyer's representation was limited to the contempt motion, the petitioner's lawyer was barred by Rule 4.2 from communicating directly with the respondent about a possible modification of the protective order without the consent of respondent's lawyer. The Opinion concluded that the two proceedings were sufficiently closely related to constitute one "matter" for purposes of Rule 4.2, so that the petitioner's lawyer could not contact the respondent absent his lawyer's consent. The Opinion also concluded that, if respondent's lawyer withheld consent to direct contact, then that lawyer would have an obligation pursuant to Rule 1.4(a) to pass on to the respondent any communications from the petitioner's lawyer.