Sunday, June 2, 2019

District of Columbia Bar is soliciting comments to possible amendments to the Rules of Professional Conduct -- UPDATED

As reported in the Legal Profession blog, the D.C. Bar Rules of Professional Conduct Review Committee is soliciting public comment from Bar members and others on its final draft report and recommendations to amend certain D.C. Rules of Professional Conduct. Comments are due by close of business on April 5, 2019.

Before submission to the Bar’s Board of Governors, the Committee requests comment on the proposed amendments summarized below. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules.

1. Technology and Confidentiality

As of last year, 36 states had adopted the Model Rules' comment that adds understanding "technology" as an element of competence.

Following this trend, the DC Bar proposal includes a proposed amendment to Comment [5] to Rule 1.1 to specify the continuing responsibility of lawyers to stay abreast of changes in technology as a matter of competence. Also, there is a proposal to amend Rule 1.6 and its comments to address a lawyer’s duty to exercise reasonable care to prevent unauthorized access to electronic information and the reasonableness of security measures to be taken by a lawyer when using and storing electronic communications. Finally, there is a proposal to amend Rule 4.4 and its comments to clarify a lawyer’s obligations after receiving inadvertently sent information or metadata.

In my opinion, these are not controversial and should be adopted.

2. Nondiscrimination and Anti-harassment

The most controversial proposal is to amend Rule 9.1, which prohibits discrimination by lawyers in conditions of employment based on a list of enumerated classes, to substantially align it with ABA Model Rule 8.4(g) addressing discrimination and harassment in conduct related to the practice of law.

I have written about this topic before and have expressed my doubts about the constitutionality of the Model Rule.  My original thoughts way back when it was proposed are here.  Although some of the problems I discuss there were addressed in the Model Rule that was eventually adopted, I think it remains problematic, and I still prefer the more limited approach currently in use in Illinois' Rule 8.4(j).

Up to now, only one state (Vermont) has adopted the Model Rule.  Tennessee and Arizona have rejected it (see here and here); Nevada abandoned an attempt to adopt it (see here and here); Pennsylvania rejected it (here), then considered it again, and now it is not clear what the status is...

I suspect this proposal will generate a vigorous debate.

3. In Re Kline

The third proposal that I find interesting is to amend Comment [1] to Rule 3.8 to make it consistent with the District of Columbia Court of Appeals holding in In re Kline, 113 A.3d 202 (D.C. 2015).

I wrote about this case here.  In it, the Court held that the District of Columbia's version of Rule 3.8 on "special responsibilities of prosecutors"  is broader than the duty imposed by the constitutional standards in Brady v. Maryland

This appears to be the prevalent interpretation of the Model Rule in other states, but it is not the only interpretation.  Wisconsin, for example, has interpreted that the duty under the rule is not broader than that imposed by constitutional standards.  (See my post on this here.)

4.  Post-Conviction Exculpatory Information: Special Responsibilities of a Prosecutor

Another interesting proposal that may generate some debate seeks to amend Rule 3.8 and Comments to make them more closely aligned with ABA Model Rules 3.8(g) and (h), but with some significant differences. In May 2015, the District of Columbia Court of Appeals asked the Bar to reconsider paragraphs (g) and (h) of ABA Model Rule 3.8, which impose duties on prosecutors to disclose certain post-conviction exculpatory information, and to determine whether the District of Columbia should adopt similar provisions.

5. And finally, ...Outsourcing

The proposal is to amend the Comments to Rules 1.1 and 5.3 to address a lawyer’s duties when outsourcing legal work or when using “outside” or contract lawyers. The proposed changes include language requiring the lawyer to inform the client about the identity of the other lawyers who will participate in the representation and the contemplated division of responsibility among them, as well as amendments to better address situations where the client, not the lawyer, is directing the outsourcing.

For Information and to Submit Comments

More information about this call for public comment, including the Committee’s final draft report and recommendations, can be found here.

Written comments should be submitted by email to or by mail to: Rules Review Committee, c/o Hope C. Todd, D.C. Bar, 901 4th Street NW, Washington DC, 20001, no later than April 5, 2019. For hard copies of the report, please contact Duane Tolson at 202-780-2777.

UPDATE 6-2-19:  Michael Ambrogi, of Law Sites, a website in which he comments on issues of technology and the law, has published a comment on the proposed changes here.

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