Risk Update

OCG & Engagement Letters — Proposed DC Bar Changes Invite Commentary

Posted Dan Bressler

My thanks to the folks at the DC Bar for sending word: “Committee Invites Comment on Proposed Rules Changes Relating to Client-Generated Engagement Letters and Outside Counsel Guidelines” —

  • “The District of Columbia Bar’s Rules of Professional Conduct Review Committee is seeking comments from D.C. Bar members, other lawyers, law firms, corporate legal departments, and non-lawyers about a group of proposed amendments to the D.C. Rules of Professional Conduct that would address issues arising from client-generated engagement letters and outside counsel guidelines. Comments are due by close of business on February 11, 2021.”
  • “Specifically, the proposed amendments would:
    • Amend Rules 1.7 and 5.6 to remove the existing open-ended permission for a lawyer and client to expand the scope of what constitutes a conflict of interest under the D.C. Rules, except where broader coverage is required by other law
    • Amend Rule 1.8 to prohibit a lawyer from proposing or accepting conditions that impose liability on a lawyer that is broader than the liability imposed by statute or common law
    • Amend Rule 1.16 to make clear that a lawyer may retain copies of client files, including the lawyer’s work product, but may not use that work product in other matters if the Rules’ confidentiality provisions prohibit such use
    • Amend Rule 1.6 to make clear that a lawyer is not only permitted, but obligated, to use general (i.e., not client-specific) knowledge gained in the course of a representation for the benefit of subsequent clients; an
    • Amend Rule 1.16 to provide that where a lawyer has agreed that her client may make unilateral changes in the terms of a representation, the lawyer may withdraw if the client makes a material change to which the lawyer is unwilling to assent.”
  • “The Committee’s “Draft Report on Proposed Changes to the D.C. Rules of Professional Conduct Relating to Client-Generated Engagement Letters and Outside Counsel Guidelines (November 2020)” can be found here.”
  • “Commenters also are invited to address the proposed amendments regarding conflicts of interest, and specifically whether there are other, less far-reaching approaches that would appropriately limit the current open-ended ability of lawyers and clients to set the limits of what constitutes a conflict of interest.”
  • Details on how to provide comments on the DC Bar website.