Exploring the DC Bar Ethics Rules: A Deep Look

Bar Ethics Rules Overview

The DC Bar Ethics Rules are a set of rules and principles that govern the legal profession in Washington, D.C. These rules are aimed at ensuring that the practice of law is conducted in a manner that is ethical, competent, and respectful. They establish clear guidelines for attorneys to follow while representing their clients, and provide a structure through which grievances can be reported, investigated, and addressed.
These rules are designed to uphold the integrity of the legal profession, as well as protect the rights and interests of clients. Through these rules, attorneys are obligated to adhere to a code of conduct that not only reflects the values of the legal profession, but also the laws and regulations of the District of Columbia .
The DC Bar Ethics Rules are not only important for attorneys to follow, but they are also vital to the public at large. By ensuring that all attorneys within Washington D.C. are held to the same ethical standards, the DC Bar ensures that all individuals who seek legal counsel will receive fair and honest representation, regardless of the attorney they choose.
The DC Bar Ethics Rules apply to virtually all licensed legal professionals throughout Washington, D.C., including lawyers, law firms, bar associations, and even legal professionals that offer pro bono services.

Origins of the DC Bar Ethics Rules

A significant part of the 2016 DC Bar Ethics Rules were revisions of existing rules that were adopted in 1990, creating a number of revisions to and a restructuring of the rules governing the conduct of all DC Bar members. This major overhaul was the product of more than two years’ work by representatives of the Bar and the Office of Disciplinary Counsel (ODC), with a goal of making DC’s rules clearer and easier to understand and, because they largely track the American Bar Association’s Model Rules on Professional Conduct, bringing them into closer conformity with what most lawyers encounter in other states. Their work created a substantial modernization of the language of the Rules, which had not been updated substantively since 1990.
In early 2007, the Board of Governors adopted, on recommendation of the D.C. Bar Legal Ethics Committee, a comprehensive package of proposed changes to the D.C. Rules of Professional Conduct. The package included recommendations for modifications or additions to existing Rules, as well as new Scriveners’ Comments and other explanatory material and a proposed transition period for the implementation of the changes that would include transitional provisions. The amendments were intended to update the D.C. Rules to conform them to the ABA Model Rules of Professional Conduct and were aimed at making them consistent with the primary purposes of the D.C. Bar Legal Ethics Committee’s work during the previous decade: to advance the cause of professionalism and to assist in their resolve all members of the Bar to comply with the Rules and to become active in the Bar’s professionalism programs.
On October 6, 2004, the D.C. Bar’s Board of Governors approved another package of changes to the D.C. Rules of Professional Conduct, a number of which are incorporated into the current amendments. As a result of concerns about the effect of the 1991 revisions, the DC Bar’s Board of Governors in June, 1993, appointed a special committee to review those changes and any need for further modifications. The special committee’s report (the Special Committee Report) was submitted in November, 1994, and, among other things, it called for the Board to entrust the revision of the Rules to a "Legislative Drafting Committee." It recommended the membership of the drafting committee, which was appointed by the Board. The drafting committee then enlisted the assistance of a consultant (Professor John L. Barkley II) before submitting a formal report to the Board of Governors in May of 1995. During 1994 and early 1995, the D.C. Bar’s Board of Governors worked to create a better structure for the legal profession in the District. In April 1995, the Board issued a report addressing a reorganization of the Bar and restructuring the D.C. Bar Rules of Professional Conduct. That report recommended amendments to the D.C. Rules of Professional Conduct to add provisions on the unauthorized practice of law, disqualification of lawyers and law firms, fiduciary duties, lawyers’ obligations upon withdrawal, confidentiality, marketing and advertising and suspended and inactive lawyers. The Board also defined the terms "reasonable," "reasonably," and "reasonable belief," and changed reference to "law firm" instead of the more common term "firm" in Rule 1.10(c).

Major Elements of the DC Bar Ethics Rules

The DC Bar Ethics Rules are divided into several key provisions that are critical for legal practitioners in the District of Columbia. These rules set out the standards of integrity and professionalism that DC lawyers must uphold when representing their clients. A key concept that appears throughout the Rules is confidentiality, a sacred principle that prohibits lawyers from disclosing information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to carry out the representation.
Rule 1.2 deals with scope of representation and allocation of authority between client and lawyer. Lawyers should make reasonable efforts to adequately communicate with clients to give them to the extent possible the ability to make informed decisions about the representation. Rule 1.4 addresses communication and serves as a help to Rule 1.2 by clarifying what steps a lawyer should take when making an effort to communicate with their client.
Rule 1.6 focuses on confidentiality. Confidentiality applies beyond the attorney-client privilege. Lawyers must not disclose information relating to the representation of a client unless the client gives informed consent or the disclosure is implied authorized to carry out the representation. The conflict between Rule 1.6 and the Crime Fraud Exception is that the exception does not apply if lawyers can reasonably anticipate that the evidence will be disclosed in a way that will defeat the privilege.
Rule 1.7 through 1.10 covers conflicts of interest and prohibits lawyers from representing a client if there is a concurrent conflict of interest. A concurrent conflict of interest exists if the representation of one client will be directly adverse to another client, or if there is a significant risk that representation of one or more clients will be materially limited by the lawyer’s responsibilities to other clients, a former client or a third person.

The DC Bar’s Authority to Enforce its Ethics Rules

The DC Bar enforces its ethics rules through a number of mechanisms, all of which are designed to promote compliance and the prevention of violations. The disciplinary system overseen by the District of Columbia Office of Disciplinary Counsel (ODC) is the primary way the DC Bar monitors compliance with its rules. The ODC investigates misconduct allegations and, if warranted, brings charges against an attorney before the District of Columbia Court of Professional Responsibility.
The DC Bar also provides resources to ensure members are informed of their ethical obligations, including by disseminating information on new ethical standards, such as those relating to metadata, upon the adoption of the new rule. The DC Bar Counsel promotes its own resources in a two-year cycle of training and information dissemination in coordination with its Ethics Advisory Service.
The DC Bar will also supply information when an attorney requests it, such as by issuing a written advisory opinion when the attorney asks questions surrounding the ethical issues at issue. Attorneys may seek guidance from the DC Bar Counsel on their individual legal scenarios or with hypothetical examples.
The procedures for imposing disciplinary measures are set out in D.C. Court of Appeals Rule XI. Disciplinary measures may include disbarment, suspension, censure, admonition, and other penalties. These sanctions are for violations of the ethics rules individually and/or Rule XI; separate sanctions may be imposed for each violation.
Violations may also result in civil liability being imposed under D.C. Code Section 15-101. An attorney may be liable when the professional negligence which caused the harm to a party "occurred in the rendition of legal services in the District of Columbia or the plan or design of the documents or the legal service involved was prepared, planned, or designed in the District of Columbia."

Updates to the DC Bar’s Ethics Rules

With the District of Columbia Bar Ethics Institute and subsequent release of the thirteenth edition of the DC Bar Lawyer’s Manual on Professional Conduct last year, DC practitioners had a front-row seat to the ongoing and evolution and refinement of the DC Bar Ethics Rules. The new edition highlighted the significant changes to the Rules from the 2012 amendments; yet in the past year, there have been even more developments to the DC Bar Ethics Rules.
On August 1, 2017, the DC Bar Ethics Rules were amended again regarding advertising. The amendment was a result of the US Supreme Court’s decision in Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), in which the Court found that "political candidate solicitation through in-person solicitation … is subject to strict scrutiny and is ordinarily suspect." In other words, direct face-to-face solicitation of candidates is typically prohibited. Although this case specifically referred to political candidates, it had implications for all types of attorney solicitation, particularly in-person solicitation. As a result, the DC Bar amended Rule 7.3(b) by adding new subsection (4), which allows lawyers to solicit potential clients in person as long as that does not involve coerc-ion, duress, fraud, overreaching or harassment . The amendment also added a definition section to Rule 7.3(c) entitled, "Definition of Harassment," to provide guidance on the meaning of "harassment" as it relates to solicitation.
A second relevant change occurred on August 24, 2016, when Paragraph B of Rule 7.3 was amended to add two more exceptions to the prohibition on targeting solicitations to follow-up with people who have communicated their desire not to be contacted. By virtue of these additions, if the target of the solicitation "has consented to be contacted directly by the lawyer" or "is a lawyer," the solicitation is permitted. Essentially, if a lawyer has the target’s consent to contact them (or they’re a fellow lawyer) then the prohibition is lifted.
Both of these changes to Rule 7.3 emphasize the ongoing need for attorneys to ensure that they are complying with the solicitation rules. To do this, the solicitation rules generally provide that lawyers should scrupulously avoid:
The solicitation rules are exceedingly broad, however, so if a lawyer has any doubt whether they are falling along the lines of these particular exceptions, consulting the DC Bar Lawyer’s Manual on Professional Conduct is an excellent first step to ensure you understand the nuances behind the rules.

Ethical Challenges for DC Lawyers

DC lawyers face many of the same common ethical issues as lawyers in other jurisdictions, although there are a few issues that are more specific to the local practice. A common issue is whether a lawyer can ethically contact an adverse party without going through that person’s lawyer, or directly communicate with any represented party across numerous situations. The DC Ethics Rules go further than the ABA Model Rules in their prohibition, and requires that unless the other party consents or a law gives permission, a lawyer must obtain the consent of a person’s lawyer before they communicate with them directly.
Lawyers must also be cognizant of the possibility of a conflict of interest. Due to the nature of some of the practice types in DC, like real estate conveyancing, attorneys often have a business association with another lawyer. They must be careful to timely and clearly inform clients and the associated lawyers of the possible conflicts, get the client’s consent, and ensure that the conflicts are not going to materially impede their ability to properly handle the case in accordance with the rules. DC has taken a fairly stringent view of what constitutes a "law firm" for purposes of determining whether there is a conflict of interest (i.e. that firm handles certain matters together). It is always important to clearly document the relationship by both lawyers if they believe their relationship is not a legal "firm".
The prohibition on "forwarding" fee accordingly is a somewhat unique feature of the DC ethics rules, although this practice is now illegal in other jurisdictions. This provision prohibits a lawyer from receiving money for service from a third party, except where there is a court or legislative authorization for the payment, or full disclosure is made on the record to a tribunal, unless the circumstances of the case require the lawyer to refrain or there is another compelling reason to do so.
Another common ethical issue is prostitution related to sex trafficking. While technically a criminal offense, law enforcement like to work with lawyers on issues that relate to the commercial sex industry, and lawyers should refrain from accepting advance payments in the endowment; defendants who plead guilty or later disavow earlier statements, or the lawyers were otherwise involved in the negotiation. It’s important to understand the client and their basis for their defenses before taking their case.
Freelance lawyers who are hired to provide assistance to a licensed attorney with a matter in which they have not entered an appearance must comply with the applicable rules, such as by not knowing the hiring lawyer, keeping confidentiality, returning files, and complying with the applicable rules and law.
The ethics rules also provide a very limited exception to the duty of confidentiality, in a situation where the DC lawyer has been told, or believes that a client will be committing a crime or fraud that would result in imminent and substantial risk of death or serious bodily harm or to perpetrate a crime or fraud that would result in substantial injury to the financial or property interests of another and in which the lawyer’s services have been used in furtherance of that crime or fraud.
DC lawyers should review the ethics rules on a regular basis and to be mindful of developments in the law regarding ethics.

Staying Current with the DC Bar’s Ethics Rules

To stay abreast of developments in ethics, most lawyers rely on the guidance available through their states’ bar associations in the form of annual formal opinions and other resources. The DC Bar, in fact, does publish an annual ethics opinion, which members can receive via email or via its website.
The Bar Association is also known for offering regular seminars on ethics issues. Attending these seminars is a great way to hear about the most current ethics rules and challenging issues in the legal field and to have your questions answered. In addition, there are numerous ethics seminars and programs held all over the country that can benefit lawyers and other professionals who operate in the DC area.
The professional publishing company ALM produces a journal called the Law Journal Newswire that focuses on laws and rules in the DC and federal regulatory and judicial systems . It also publishes the D.C. Law & Policy Regulation Report. Individuals working in the area of professional ethics may benefit from tracking news and issues that affect the area of professional ethics in this jurisdiction and others.
Of course, the best way to become familiar with the DC codes, regulations, statutes and other content related to professional ethics is to take the time to read them. The Office of the District of Columbia Register of Regulations publishes a comprehensive guide to the rules and regulations that govern professional ethics in the District. Likewise, the District of Columbia Court of Appeals has published over 100 ethics opinions. Individuals who want to have the most comprehensive understanding of DC Ethics issues should consult both of these valuable publications.