Washington Lawyer - January/February 2022 - 12

FEATURE
brutality case, for example, and giving fees to the public interest organization
that had referred the case and worked with them on it. There
wasn't anything wrong, but it wasn't clear. And so we thought it was
very important to put it into the rule and also to spell it out in the
comment.
Just to circle back to 1991 for a moment, and the Rule 5.4(b) provision
that allows nonlawyers to have a financial interest or managerial authority
in a law firm - while the change was important, in my opinion it's
had a very limited impact, for the following reasons.
It is only applicable in D.C. If you are in a large law firm, as I was at Hogan
& Hartson, you have lawyers who are in New York, California - all over
the place - and they're prohibited from engaging in such an arrangement.
So, you can't have a Washington, D.C.-based partnership with
offices in other states taking advantage of this provision because you're
exposing the partners in those other states to ethical violations. The rule
has had limited impact.
The D.C. version of the rule helps lawyers give the client what it needs.
We have a lot of law firms with offices only in D.C. that can take advantage
of this provision, and other law firms that have affiliated consulting
groups to help them give their clients the full range of services they
want because clients are demanding it. They want to have one-stop
shopping. This is something that I think other bar associations and courts
should continue to take a look at.
I realize the courts are uncomfortable with this because they fear if you
have someone who's not a lawyer involved, you may not have the same
ethical conduct and lawyer independence that you would have if only
lawyers over whom the courts have disciplinary authority were owning
and managing law firms. I get that. But I think what's happening is we are
being driven as a profession by the clients to provide full service.
But what do you think, Myles?
ML: The question of changes to Model Rule 5.4(b) has been debated in
the ABA House of Delegates. So far, the proponents of such a change
have not been successful for the reasons you've indicated - that courts
are concerned, and so are many members of the bar. The fear is that
nonlawyers involved in the management and financing of law firms
would have an impact on lawyers' independent professional judgment
and would not be bound by the legal ethics rules.
D.C. Rule 5.4(b) addresses this concern by providing that nonlawyers
who are involved in these firms must agree that they will be bound by
the same ethics principles as the lawyers in the firm. I think the D.C.
version of Rule 5.4(b) provides a framework for how it can be done in a
way that makes sense, and which assures clients that their lawyers will
still follow their ethical duties and obligations.
ML: I want to ask you a question now about a rule that goes back to your
pro bono work. Rule 6.1 is the rule that encourages lawyers to provide
voluntary pro bono service. The D.C. Bar has one of the most robust pro
bono programs of any state bar in the country. Do you think Rule 6.1
goes far enough in getting lawyers to take advantage of pro bono
opportunities and provide pro bono service? If you were drafting the
rules again, would you make any changes?
JK: I don't think the rule goes far enough, or could ever go far enough.
We've had the rule for a long time. It's been supplemented by the
comments and the adoption of resolutions by judicial conferences of
both the D.C. Circuit and the D.C. Court of Appeals to quantify what
those courts' expectations are - that each year lawyers accept at least
one court appointment, or provide at least 50 pro bono hours, or make
a financial contribution of at least $750 to a legal assistance organization.
These are somewhat dated figures, but now is not the time, as we're
recovering from the COVID-19 pandemic, to suggest that $750 is not
enough.
The entire D.C. legal community is simply the best in stepping forward
and doing pro bono. But we must do more. When I was D.C. Bar president,
I tried to indicate that one of the reasons we were not doing more
was because law firms at that time had really inflexible minimum billable
hour quotas. I suggested that was interfering with lawyers' other professional
obligations.
''
You have to know these rules,
or you're gonna screw up because
common sense sometimes gives
you the wrong answer.
12 WASHINGTON LAWYER * JANUARY/FEBRUARY 2022
Indeed, in my introductory speech as Bar president, I said, " If you're going
to have a minimum billable hour quota, I suggest that in order to make
sure all your lawyers are meeting other professional obligations, you put
in a maximum billable hour quota because once they hit that maximum,
they should be doing pro bono, or public service, and that would go a
long way to helping fill the needs. "
ML: Right. And I think we both agree that one thing that should remain
in place is that pro bono service should be voluntary.
JK: Yes.
ML: That puts a responsibility, not a burden, on us all to live up to our
ethical aspirations. We are a service profession, and we should serve not
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