Washington Lawyer - March/April 2024 - 43

SPEAKING OF ETHICS
When and under what circumstances the consent
obtained is " informed " is very much a
question of fact. With one conspicuous exception,³
there is generally no statute, court decision,
ethics rule, or comment that definitely
states that " if you provide the following information
to the client, that will render the consent
informed: A, B, C, etc. " The question is variable,
depending on the circumstances of the
particular situation and the sophistication, vel
non, of the client, etc.
In most instances, when the D.C. Rules require
informed consent, such consent need not be
obtained in writing.⁴ See, for example:
* Rule 1.2(c) (Scope of Representation), with respect
to a limited scope representation;
* Rule 1.5(e) (Fees), with respect to a division of
a fee between lawyers who are not in the
same firm;⁵
* Rule 1.6 (Confidentiality of Information), with
respect to obtaining client permission to disclose
a confidence or secret;
* Rule 1.7 (Conflict of Interest: General Rule),
with respect to undertaking certain simultaneous
representations that would otherwise
create a conflict;
* Rule 1.9 (Conflict of Interest: Former Client),
with respect to undertaking a current representation
that would otherwise conflict with
a former representation;
* Rule 1.18 (Duties to Prospective Client), with
respect to representing a client where the
lawyer had previously learned confidential information
from a prospective client in a case
that never matured into an attorney-client
relationship; and
* Rule 2.3 (Evaluation for Use by Third Persons),
pursuant to which a lawyer may not provide
an opinion to a third party when that opinion
can harm a client without first obtaining the
client's informed consent.
Even in instances where the Rules do not require
that the lawyer obtain the client's informed
consent in writing, it may be prudent to
do so. Moreover, although there is no instance
where our Rules require the lawyer to deliver a
writing to the client detailing all the information
that the lawyer provided to secure the client's
informed consent,⁶ this could be a good practice
as well in certain instances.
'OBJECTIVES' VS. 'MEANS'
Rule 1.2(a) walks the line between the objectives
of the representation, which vest entirely
with the client, and the means of obtaining
those objectives, which vest generally with the
lawyer: " A lawyer shall abide by a client's decisions
concerning the objectives of representation
. . . and shall consult with the client as to
the means by which they are to be pursued. " ⁷
This important distinction between objectives
and means protects lawyers against overreaching
clients who try to dictate their legal strategies,
write their briefs, control their relationship
with opposing counsel, attempt to direct which
motions to file and not to file, and essentially direct
and control the litigation. However, in some
instances involving the means of the representation,
it may be in the lawyer's interest to accede
to the client's wishes for two reasons -
provided, of course, that the client is not requiring
the lawyer to engage in illegal or unethical
conduct.
First, client relations are always important, so if
a lawyer can find a way to give a client some
measure of satisfaction and control, so long as it
does not interfere significantly in the lawyer's
assessment regarding how best to handle the
case, it may be a good practice to yield to the
client even when the issue falls squarely under
the " means " of the representation.
Second, clients may actually have a perspective
on the case or knowledge about the case that
the lawyer hasn't considered. For example, the
determination whether to depose a witness or
subpoena a witness for trial falls well within the
means of the representation, but a lawyer may
want to rethink his decision in this regard based
upon client input.
COMMUNICATIONS WITH CLIENT
Rule 1.4 (Communication) requires a lawyer to
tell the client everything that the client would
reasonably need to know about the case in
general and to put the client in a position to
make informed decisions about the case in particular.
This broad duty is such that whenever a
lawyer asks, " Must I tell my client . . . ? " I immediately
answer, " Yes, now you can finish your
question " because, in almost all cases, the lawyer
is concerned about his own interests and
not that of the client.
Here, too, there is no ethical requirement that
the lawyer provide all information to the client
in writing. However, depending on the importance
of the communication and the lawyer's
relationship with the client, it may be a good
practice for the lawyer, in some instances, to
do so.
CONCLUSION
It is not the intention of this article to encourage
lawyers to view their clients as opponents or to
treat their clients as potential ethics complainants
or prospective malpractice plaintiffs. For
example, handing obvious " CYA " memos to clients
after every substantive communication
will, to say the least, not do much to promote
the attorney-client relationship and facilitate
the development of trust, which is so integral to
the representation.
However, " thou shalt know thy client " is always
prudent counsel and, as such, discretion is
sometimes the better part of valor. There are
many times when a caller on the Legal Ethics
Helpline who is dealing with a very difficult client
says, " I had a bad feeling about this client
from the beginning. " Lawyers should know their
clients and institute some of the practices described
here when the lawyer feels it might be
necessary to have additional protection, even
though the Rules do not mandate taking such
action.
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.
NOTES
1 But see Rule 1.5(c) regarding contingency fee
agreements.
2 See Rule 1.16(d).
3 Notwithstanding the plain language of Rule 1.15,
the D.C. Court of Appeals has mandated that a
lawyer must obtain informed consent from the
client in writing before depositing unearned
advanced fees into the lawyer's operating
account and that the lawyer must communicate
specific information to the client. See In re Mance,
980 A.2d 1196 (D.C. 2009); In re Ponds, 279 A.3d
357 (D.C. Ct. App. 2022).
4 The client's informed consent in writing is
specifically required by Rules 1.8(a), 1.8(f), and
1.15.
5 While informed consent to the fee split is not
required in writing, Rule 1.5(e)(2) does require
that certain information be communicated to
a client in writing.
6 Except, as discussed here, in situations contemplated
by In re Ponds. See endnote 3.
7 See Comment [1].
MARCH/APRIL 2024 * WASHINGTON LAWYER 43
Washington Lawyer - March/April 2024

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