Washington Lawyer - March/April 2024 - 42

SPEAKING OF ETHICS
Not Ethically Mandated ...
But Do It Anyway
By Saul Jay Singer
H
ere at the D.C. Bar Legal
Ethics Program, we often say
that our thousands of
annual callers are the " good
guys " in the sense that they care
enough to ascertain the ethical
imperative and to act accordingly.
In providing informal guidance, we explain that,
unlike the heightened " appearance of impropriety "
standard of the ABA Model Code of Judicial
Conduct, the D.C. Rules of Professional Conduct
are binary; that is, the attorney's conduct is ethical,
or it isn't.
It is interesting to note the differing approaches
by lawyers across the spectrum, particularly
with respect to questions involving conflicts,
which often involve close questions of fact.
Those who insist " just tell me if I can take on
the representation or not " are willing to go
right up against the ethical line, while others
will not take on the case unless they can determine
with a reasonable degree of certainty that
the representation presents no possible ethical
risk.
As ethics counsel, we advise these latter lawyers
that we are not trying to talk them out of taking
on permitted representations and that, in some
cases, their decision to decline a representation
is tactical rather than strictly ethical - which, of
course, is always their decision to make. At the
same time, we have learned that it is a good
idea to encourage lawyers to trust their instincts
because when the little hairs stand up on the
back of their heads, there is usually a good reason
for it.
There is a middle ground where the D.C. Rules
do not require specific action but good practice
calls for certain activity.
42 WASHINGTON LAWYER
* MARCH/APRIL 2024
FEE/RETAINER AGREEMENTS
As a good preliminary example, consider Rule
1.5(b), which requires that:
When the lawyer has not regularly represented
the client, the basis or rate of the fee, the
scope of the lawyer's representation, and the
expenses for which the client will be responsible
shall be communicated to the client, in
writing, before or within a reasonable time
after commencing the representation.
Although we commonly use phrases such as " retainer
agreement, " " fee agreement, " and " engagement
letter, " the Rule does not require a
formal legal document but, rather, merely a
" writing. " As such, the requirement of the Rule
could be met by sending an email to the client
or even scrawling on a napkin the three required
elements (fee, scope of representation, and client
expenses) and handing it to the client. However,
it is much preferred - and far more professional
- to draft a formal agreement, even
though it's not ethically mandated.
Moreover, Rule 1.5(b) requires only the three elements,
but lawyers often include additional
terms in their retainers, as they anticipate various
events and provide for them in advance
within the agreement.¹ Again, this is an excellent
practice, but not ethically required. Finally, in an
hourly representation, there is no requirement
that the client actually sign the agreement.
However, as a matter of good practice, it is very
much to the lawyer's advantage to have the client
sign the retainer.
MALPRACTICE INSURANCE
Another example where best practices may
vary from the strict ethical mandate is with respect
to a D.C. lawyer carrying malpractice insurance.
Although professional liability coverage
is not required in the District of Columbia, it
would be a foolish lawyer, indeed, who practices
without such protection.
NOTICE OF WITHDRAWAL
In connection with filing a motion to withdraw,
a lawyer must not only notify the client about
the motion but also advise the client to act expeditiously
to secure new counsel so that the
client will not be left unrepresented when the
court grants the motion. While, again, there is
no requirement that the notice be in writing,
providing such a writing is prudent practice
that affords important protection for the lawyer
and is consistent with a lawyer's duty to take all
steps reasonably practicable to protect a client's
interests upon withdrawal.²
AUTHORITY TO SETTLE
Rule 1.4(c) mandates that a lawyer communicate
to the client all settlement offers in both civil
and criminal cases, but there is no requirement
under the D.C. Rules that a lawyer first obtain in
writing the client's informed consent to the offer
or acceptance of a settlement. We have received
a number of calls on the Legal Ethics Helpline
where a lawyer who maintains that she received
the client's informed consent to settle the case is
now defending against either an ethics claim
pending at the Office of Disciplinary Counsel, or
even a malpractice claim, because the client
now claims that the lawyer acted unilaterally in
facilitating the settlement and the lawyer has no
proof to the contrary. Lawyers may avoid such
nightmare scenarios by obtaining the client's informed
consent to settle in a document that includes
a detailed description of the settlement
terms in writing.
OBTAINING INFORMED CONSENT
Pursuant to Rule 1.0(e), informed consent " denotes
the agreement by a person to a proposed
course of conduct after the lawyer has
communicated adequate information and explanation
about the material risks of and reasonable
available alternatives to the proposed
course of conduct. "
Washington Lawyer - March/April 2024

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