Washington Lawyer - January/February 2022 - 11

FEATURE
We have government lawyers. We have small firm lawyers. We have big
firm lawyers. We have academics. Every group was represented on the
Board. This was an opportunity to reach out and get input from them on
a rule-by-rule basis, on a comment-by-comment basis, about what each
of them thought, and then have a very thoughtful discussion to reach
consensus. So, instead of what was the more usual practice of having a
committee report come to us during the monthly Board of Governors
meeting, and usually being approved or disapproved after cursory
debate, this was totally different.
Some of the issues were complex. Some were controversial. And the
question was, what was the best thing to do for the D.C. Bar? I just can't
compliment the Board of Governors enough for the work they did. As a
result, each one of them became an ambassador to the legal community
at large for the new rules.
Whenever there was a question about the new rules, we had people
who were out there in the community, who were trusted, who had their
own network of contacts, who could explain the new rules and why they
were being proposed to the court, who could answer dissenting voices
and explain what we did. That turned out to be really important. I think
the court recognized that, too. The Rules of Professional Conduct go to
the Court of Appeals for ultimate adoption, and we were very pleased
with what the court did.
ML: Let me follow up on your statement that the D.C. Rules of Professional
Conduct don't necessarily follow the ABA Model Rules.
I want to focus on two of the differences between the [two]. First,
D.C. Rule 1.6(a) directs a lawyer to not reveal, or improperly use, a
client's " confidence or secret. " The words " confidence " and " secret "
are defined in D.C. Rule 1.6(b). The ABA's Model Rule 1.6(a) does not
use those terms. It directs a lawyer to not reveal " information relating
to the representation. " That's a big difference. Can you tell us why this
change was made?
JK: Yes, it is a big difference, but it was a fairly easy
decision to make. There was consensus among the
entire Board that " information " was just too overbroad.
The real concern was protecting confidences,
protecting secrets. So, the idea was, why over-prohibit?
Let's just focus on what's important. And that
had very many practical consequences.
Each of us had different examples that we raised
for the whole Board to consider. The example that
I raised was that one of the things you do when
you're doing a conflicts check [is] you usually try to
get some sort of future conflict waiver from a new
client. But in order to do that, you need to have that
new client's informed consent. This requires telling
the new client something about what the other representations
are or might be. Such a disclosure of
information related to other representations might
not be permitted if you use the word " information "
in the D.C. Rules.
If you use " confidences " and " secrets, " it's fairly easy to
write an advance waiver that says, " We represent a
utility client in various rate makings and we seek your
advance approval of that. " There were many other
JANUARY/FEBRUARY 2022
* WASHINGTON LAWYER 11
examples; that was just one I remember, which was decisive in how
I voted.
ML: Another rule where the difference between the Model Rules and
the D.C. Rules is significant is Rule 5.4, dealing with professional independence
of a lawyer. Since 1991, D.C. Rule 5.4(b) permits, under certain conditions,
D.C. Bar members to practice in a firm where a financial interest
is held, or managerial authority is exercised by, a nonlawyer. The Model
Rule does not permit this.
In 2005 other parts of D.C. Rule 5.4 - 5.4(a)(5) and Comment [11] to Rule
5.4 - were amended to permit D.C. lawyers to share the legal fees they
were awarded by a tribunal, or that they received in a settlement, usually
in pro bono cases, with the 501(c)(3) nonprofit organization that had
employed, retained, or recommended the lawyer in the matter.
The Model Rule only permits the sharing of court-awarded legal fees.
The D.C. Rule expanded this provision to include fees obtained in a settlement.
Given your extensive pro bono work, I'm sure you had a major
hand in this change. Can you tell us what was the goal here and why this
change was made?
JK: Yes, I did play a major role in arguing that we should adopt this
change. The reason was that it merely clarified what I always thought
was the law. D.C. wasn't following the ABA Model Rule to begin with.
And I had been in the position of being on the winning side of many
cases in which co-counsel was either at the Washington Lawyers'
Committee for Civil Rights and Urban Affairs, the ACLU, the NAACP, or
other groups. We would get the awards of attorney's fees, and we would
always share them.
However, we were finding that other firms and other lawyers were
confused because they looked at the ABA Rule and they were thinking
somehow there was something wrong with settling a major police
Washington Lawyer - January/February 2022

Table of Contents for the Digital Edition of Washington Lawyer - January/February 2022
