Washington Lawyer - November/December 2020 - 52

SPEAKING OF E THICS

May a Lawyer Contract
Around the D.C. Rules?
By Saul Jay Singer

SCENARIO 1. Atilla Attorney, one of the most indemand transactional lawyers in the District
of Columbia, is approached by Shifty Sam, the
CEO of Cunning Corp., to represent the entity in
a questionable corporate transaction. Atilla has
no problem representing clients in shady deals
- in fact, such cases constitute his bread and
butter - but he does not particularly like this
case, and he likes Sam even less, so he declines
the representation. Sam, however, is nothing if
not persistent and, insisting that he will settle
for nothing less than Atilla as his lawyer, he
offers to pay him $2,500 an hour for the
representation.

retainer agreement specifying that "all ethical
duties in this representation shall be pursuant to
the ABA Model Rules, including particularly with
respect to any ethics complaint that you might
want to bring against me."1

SCENARIO 2. Larry Lawyer, who had the misfortune to open his solo practice shortly before
the coronavirus pandemic hit, has generated
little business and is on the verge of bankruptcy when salvation walks into his office in
the form of a client with what promises to be
a protracted civil rights/wrongful death case.
Larry's problem is that, though he has only
been a lawyer for a few years, he "knows what
he doesn't know" and understands well that he
lacks any substantive experience in handling
such complex cases.

Assume further that Sam, who has a few years
of law school under his belt, says that he will
sign an unambiguous waiver of his rights under
Rule 1.5(a) to pay only a "reasonable" fee and
that, in any event, the fee is reasonable in these
circumstances because Atilla is unique, and
factors in ascertaining reasonableness include
"the experience, reputation, and ability of the
lawyer performing the services" and "the likelihood, if apparent to the client, that the acceptance of the particular employment will
preclude other employment by the lawyer."2

SCENARIO 3. Connie Counsel, who has been close
friends with Harry Husband and Wanda Wife
for 20 years, was shocked and dismayed when
they asked her to represent both of them in
their "peaceful" divorce.

In the second scenario, the issue is whether
Larry Lawyer may undertake a representation
for which he is not competent, notwithstanding the ethical mandate of Rule 1.1 that
"A lawyer shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for
the representation."

In the fourth hypothetical, the issue is whether
Bernice Barrister may contract her way around
Rule 8.5(b)(1), pursuant to which "In any exercise
of the disciplinary authority of this jurisdiction,
the Rules of Professional Conduct to be applied
shall be as follows: For conduct in connection
with a matter pending before a tribunal, the
rules to be applied shall be the rules of the
jurisdiction in which the tribunal sits."3 As in our
previous hypotheticals, Bernice will argue that
the client gave his informed consent to the
provision, which she bolded and italicized in
her retainer agreement and which she discussed with the client in great detail.

Assume further that when Larry advises the
prospective client that he lacks competency
and experience, the client responds that (1) he
is unable to find any other lawyer to take his
case, (2) Larry's low hourly fee is the only one
he can afford, (3) he would ultimately rather go
to trial with an inexperienced lawyer than with
no lawyer at all, and (4) he will sign a waiver
acknowledging that Larry advised him that he

In In re Ryan,4 the Board on Professional Respon-
si-bility recommended various sanctions,
including suspension, against respondent
Sylvia Ryan, who had committed a number of
significant ethics violations while representing
several clients in various immigration matters.
Some of the more serious ethical breaches
included missing crucial filing deadlines, failing
to show up for a deportation hearing, taking

SCENARIO 4. Bernice Barrister, who is admitted
in the District and in several other jurisdictions,
is always very careful to ascertain which ethics
rules apply whenever she takes on a new representation. Over the course of her many years in
practice, she has concluded that the D.C. Rules
of Professional Conduct are strongly client-centric, to the detriment of lawyers in disciplinary
proceedings. As such, whenever she enters a
representation otherwise subject to the D.C.
Rules - as, for example, when the matter will
be brought before a tribunal in the District of
Columbia - she includes a provision in her

52 WASHINGTON LAWYER

*

The issue in each of these hypotheticals is
whether a lawyer, with the client's informed
consent, may contractually bypass a duty
imposed by the D.C. Rules.
In the first hypothetical, the issue is whether
Sam can agree to pay Atilla an outrageous fee,
notwithstanding the Rule 1.5(a) mandate that
"a lawyer's fee shall be reasonable."

NOVEMBER/DECEMBER 2020

lacks competence in civil rights cases and that
all he expects is for Larry to do his best.
In the third hypothetical, the issue is whether
Connie Counsel may represent both a husband
and wife in a contested divorce case in violation of Rule 1.7(a), pursuant to which "A lawyer
shall not advance two or more adverse positions in the same matter."
Assume further that Husband and Wife tell
Connie: "We have known you a long time, we
trust you implicitly, and we know that you will
do right for both of us. In addition, especially
since our finances are obviously going to be an
issue in the future, we want to avoid having to
retain separate counsel, who are likely to make
the divorce contentious, which is the last thing
we want." They agree in advance that, as to
adversity between them, they will abide by
Connie's decision.
Washington Lawyer - November/December 2020

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