Washington Lawyer - January/February 2025 - 41

SPEAKING OF ETHICS
who are employed or supervised by a lawyer in
the District are exempt from mandatory reporting
when particular information relates to a client's
case.6
The importance of ensuring that nonlawyers
comply with client confidentiality cannot be
stressed enough. Having an " innocent " conversation
with a friend about a client's case is a
breach of confidentiality because it is disclosure
of information learned through the attorney-client
relationship to a third party.
Lawyers must also consider Rule 5.5, which prohibits
a lawyer from engaging in or assisting
another in engaging in the unauthorized practice
of law. A nonlawyer assistant is more likely
to violate this Rule when individuals are not
vigilant about the parameters of the activities
of the nonlawyer staff. Lawyers must carefully
and astutely manage the delegation of duties.7
The investigator's creation of a fake social media
page to access the opposing party's social
media could result in violation of multiple parts
of Rule 8.4 for the attorney.⁸ Rule 8.4(a) states in
part that it is professional misconduct for a lawyer
to violate the Rules of Professional Conduct
or " knowingly assist or induce another to do
so, or do so through the acts of another. " Rule
8.4(c) states that it is professional misconduct
to " engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation. "
Additionally, if the investigator interacts with
the opposing party via social media, it may
give rise to violations of Rules 4.1 (Truthfulness
in Statements to Others) and 4.2 (Communication
Between Lawyer and Person Represented
by Counsel)9
investigator should have checked in with Laila
before engaging in any interaction with third
parties.
Avoiding ethical peril may start with requiring
nonlawyer assistants to sign agreements that
they agree to abide by the Rules of Professional
Conduct. However, lawyers should also:
* Create firm policies and protocols that allow
for checks and redundancies in areas of high
exposure.
* Ensure that nonlawyer assistants take part in
ongoing training.
* Ensure that nonlawyer assistants understand
that their conduct can impact an attorney's
license and that they are not permitted to
do anything that a lawyer would not be permitted
to do, even if a particular occupation
JANUARY/FEBRUARY 2025 * WASHINGTON LAWYER 41
might otherwise legally be allowed to do
certain things (e.g., private investigators).
* Focus on Rules surrounding confidentiality,
conflicts,10
and communications with opposing
parties - both represented and unrepresented
- and witnesses.
* Ensure that any nonlawyer assistant handling
client funds strictly complies with Rule
1.15. Lawyers should also regularly review
bank statements to ensure nonlawyers' compliance
with Rule 1.15.11
* Ensure that nonlawyer assistants are using
technology in a manner consistent with the
Rules of Professional Conduct.12
In conclusion, " [a] lawyer should give such assistants
appropriate instruction and supervision
concerning the ethical aspects of their employment. " 13
Another
good rule of thumb is that a
lawyer may delegate but not abdicate. In other
words, as the managing or supervising lawyer,
you are ultimately responsible for the conduct
of your employees.
NOTES
1 CFSA investigates claims of child abuse and
neglect and handles other matters related to
children and child safety.
2 See Rule 5.3.
3 Rule 1.6 discusses confidentiality in the context
of the attorney-client relationship.
4 Nonlawyer assistants are also subject to the
exceptions of Rule 1.6. Rule 1.6(f) further states,
" except that such persons may reveal information
permitted to be disclosed by paragraphs (c), (d),
or (e). "
5 See D.C. Code § 4-1321.02 (D.C. 2024), defining
mandatory reporters of child abuse and specific
exceptions.
6 Legal Ethics Opinion (LEO) 282 discusses the
duties of employing a social worker. It was published
in June 1998; therefore, a large part of this
opinion has been superseded by amendments
to the reporting law cited above. However, the
opinion is still useful to understand the ethical
framework.
7 ABA Formal Opinion 506 (2023).
8 See LEO 371 (2016), discussing the use of social
media in providing legal services.
9 See also Rule 4.3.
D.C. Bar legal ethics counsel are available for confidential
inquiries on the Legal Ethics Helpline at
202-737-4700, ext. 1010, or at ethics@dcbar.org.
10 See LEO 227 (1992), 285 (1998).
11 Rule 1.15 sets forth the parameters for the safekeeping
of client property, including money.
12 See LEO 388 (2024).
13 Comment [1] to Rule 5.3.
for Laila. The social worker and the
MANAGING MONEY
presented by the
D.C. Bar Practice Management Advisory Service
How to handle the new client, the fee
agreement, and the bank accounts.
Upcoming 2025 sessions:
March 10 and June 16
9 a.m. to 12:30 p.m.
You may also request a private class
for you and your staff.
www.dcbar.org/pmas
http://www.dcbar.org/pmas
Washington Lawyer - January/February 2025

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