April 23, 2015
Rules Review Committee
c/o Hope C. Todd
District of Columbia Bar
1101 K Street NW, Suite 200,
Washington, DC 20005
Dear Rules Review Committee:
The undersigned respectfully provide the following comment pursuant to the D.C. Bar Rules Review Committee’s Request for Public Comment to Amend D.C. Rule 1.2. The impetus for considering changes to D.C. Rule 1.2 and Comments was the transmittal in April 2013 of a report to the D.C. Bar from the Limited Scope Working Group (“Working Group”), a joint project of the D.C. Access to Justice Commission and the D.C. Bar Pro Bono Program.
We greatly appreciate the Rules Review Committee’s careful consideration of the Working Group’s recommendations and of its additional informal comments submitted on October 31, 2013. We believe that the Rules Review Committee’s proposed amendment represents a significant step forward in the effort to foster limited scope representation in the District of Columbia. But we provide this limited comment to address one substantive area in which the Rules Review Committee’s proposed rule differs from the Working Group’s recommendation, from the ABA Model Rules, and from the rules of almost every other jurisdiction in the United States. The Working Group recommended that the amendment to D.C. Rule 1.2(c) include the ABA Model Rule’s requirement that any limited scope representation be “reasonable under the circumstances.” The Rules Review Committee proposed instead a requirement that “the limitation does not preclude competent representation or violate other Rules.”
The ABA modified Model Rule 1.2 in 2002 to require that limited-scope representations be “reasonable under the circumstances.” The ABA’s purpose in amending the Model Rule was to “more clearly permit, but also more specifically regulate, agreements by which a lawyer limits the scope of the representation to be provided to a client.” ABA, Report of the Commission on the Evaluation of the Rules of Professional Responsibility 145 (Nov. 2000). Since then, 42 states have adopted a version of the post-2002 model rule; all 42 have included the “reasonable under the circumstances” requirement. At least two other states expressly have adopted the “reasonable under the circumstances” language through a formal ethics opinion (Michigan), or a court order (Massachusetts). AL, A K, AR, AZ, CO, CT, DE, FL, GA, HI, ID, IL, IN, IA, KS, KY, LA, ME, MD, MN, MS, MT, NE, NV, NH, NJ, NM, NY, NC, OH, OK, OR, PA, RI, SC, SD, TN, UT, VT, WA, WI, WY. We are not aware of any jurisdiction that has, as the Rules Review Committee proposes be done here, adopted a version of the Model Rule 1.2 without the “reasonable under the circumstances” requirement.
We believe that the Rule Review Committee’s proposed language likely would preclude any representation that would be found “unreasonable” under the standard adopted by the ABA and other jurisdictions. But we are concerned that judges, bar officials, and practitioners seeking to apply the proposed D.C. Rule 1.2 in the future would note the intentional omission of the reasonableness requirement and justifiably assume that there is some “unreasonable” activity intended to be precluded by the Model Rule but not by the D.C. Rule. It plainly is not the Rules Review Committee’s intent to permit lawyers in D.C. to engage in limited scope representations that would be deemed “unreasonable” and therefore impermissible in at least 44 other states, but that could be the unintended consequence of future efforts to divine the purpose of eliminating the reasonableness requirement.
Of course, the D.C. Bar need not follow other jurisdictions’ rules if it has a reason not to do so. Page 11 of the Rules Review Committee’s proposed recommendation states that it declined to adopt the reasonableness requirement for two reasons: (i) because it is unnecessary in light of the protection provided by the other Rules, and (ii) it would inappropriately import a standard-of-care requirement into the Rules of Professional Conduct. We agree that the proposed Rule should be interpreted to provide the same protection as the Model Rule—in part because at least a dozen of the other Rules already import a reasonableness requirement into the Rules of Professional Conduct—but the express omission of the reasonableness requirement may invite future efforts to determine what, precisely, the omission was intended to mean. If the proposed Rule is intended to provide the same level of protection as the Model Rule, then why not use the language adopted in the Model Rule and 44 other states? Using the same language would make clear the intent to provide the same protection and would permit D.C. practitioners, judges, and Bar officials to take advantage of a growing body of legal and ethical authority interpreting what is, in fact, a reasonable limitation on representation. See, e.g., Rule 1.1 (“Competent representation requires the legal knowledge, skill, thoroughness, and preparationreasonably necessary for the representation.”); 1.3 (requiring lawyers to use “reasonably available means” and to act with “reasonable promptness”); 1.5 (lawyer shall charge a reasonable fee); 1.6 (lawyer may reveal confidences and secrets to the extent “reasonably necessary”); 1.13 (“lawyer shall proceed as reasonably necessary”); 2.3 (lawyer must act reasonablyin connection with evaluations for third persons); 3.2 (“lawyer shall make reasonable efforts to expedite litigation”); 3.3 (lawyer shall take “reasonable remedial measures” to ensure candor to tribunal); 3.4 (lawyer must “make reasonablydiligent efforts” in responding to discovery); 5.1 and 5.3 (requiring lawyers to “make reasonable efforts” in supervising lawyers and nonlawyers, respectively); 5.7 (requiring “reasonable measures” in connection with law-related services); and several rules addressing lawyers’ reasonable knowledge and belief (e.g. 1.6, 1.7, 1.14, 1.16).
Given the overarching goal of achieving greater clarity for lawyers and clients engaging in limited scope representations, we respectfully suggest that the better course here would be to adopt the “reasonable under the circumstances” requirement. In all other regards, we support the Rules Review Committee’s proposal and applaud its efforts to make limited scope representation more widely available in the District of Columbia. If a decision is made ultimately to adopt the proposed Rule without the “reasonable under the circumstances” requirement, we respectfully urge the Rules Review Committee, the Board of Governors, and/or the Court of Appeals expressly to state that the D.C. Rule is not intended to permit any representation that would be deemed unreasonable under the circumstances and that legal and ethical authority interpreting the Model Rule language is persuasive in the District of Columbia.
Peter B. Edelman
Chair, DC Access to Justice Commission
Ann K. Ford
Chair, DC Bar Pro Bono Committee
Signing on in support of this letter
Charles C. Lemley
Chair, Limited Scope Working Group
Wiley Rein LLP
On behalf of the Washington Council of Lawyers:
Paul S. Lee
President, Board of Directors
On behalf of the D.C. Consortium of Legal Services Providers:
Chinh Q. Le, Co-Chair
Tina S. Nelson, Co-Chair