Washington Lawyer - November/December 2020 - 53

SPEAKING OF E THICS
money from the client to file an appeal but
failing to do so, and failing to return client
files upon repeated request. The Hearing
Committee further found that, despite carrying
a heavy caseload with significant deadlines,
many with serious ramifications for her clients
(including deportation), Ryan failed to maintain
any calendar system to record due dates and
that she had made several misrepresentations
to the D.C. disciplinary authority.
With respect to the charge that she had failed
to produce the client's file upon the client's
request, Ryan claimed, inter alia, that the Board
and the Hearing Committee had erroneously
analyzed the alleged offenses under the
neglect and misconduct Rules of Professional
Conduct rather than under applicable contract
law and that, as such, because her clients failed
to fulfill their obligations under their retainer
agreements, she was relieved of her ethical
obligations to them.
The court could not have been clearer in
rejecting Ryan's arguments:
This assertion ignores the fundamental principle that an attorney's ethical duties to a
client arise not from any contract but from
the establishment of a fiduciary relationship
between attorney and client . . . Because
ethical responsibilities exist independently of
contractual rights and duties, we hold that
any supposed failure of a client to fulfill a
retainer agreement is no defense to a disciplinary charge against an attorney.5
(Emphasis added).
The courts have long held that a lawyer's
relationship with his or her client is a fiduciary
relationship marked by the highest possible
degree of trust. Thus, in Connelly v. Swick
& Shapiro, P.C.,6 the court ruled that:
Because a lawyer occupies a multifaceted
position of trust with regard to the client . . .
there is an ever present fiduciary responsibility that arches over every aspect of the
lawyer-client relationship.
Indeed, such fiduciary duties are made
manifest in the explicit mandates of the Rules
of Professional Conduct, and a lawyer is subject
to discipline for conduct in violation of those
Rules, notwithstanding any contractual provision to the contrary. The D.C. Legal Ethics
Committee has opined accordingly.
For example, in Legal Ethics Opinion 300,
the committee, in analyzing the specific

obligations owed to clients under Rule 1.8(a),
affirmed the well-established principle that
"a lawyer occupies a fiduciary position vis-à-vis
his client." Similarly, in LEO 378, the committee
emphasized that D.C. Rule 1.8(a) reflects
the fiduciary nature of the lawyer-client
relationship.
As such, even if the client gives informed
consent, Atilla may not accept a $2,500 hourly
fee; Larry may not undertake a representation
that he is not competent to handle; Connie
may not represent Husband and Wife in a contested divorce case; and Bernice will be subject
to the D.C. Rules in matters pending before a
D.C. tribunal. In each instance, the lawyer's
ethical duties as set forth in specific D.C. Rules
will trump any contractual agreement between
lawyer and client contrary to the Rules.
However, a lawyer may act in reliance upon the
client's informed consent where the Rule specifically permits her to do so and the lawyer
otherwise complies with the Rule's express
terms. Thus, with informed consent, a lawyer
may:

* Share a fee with another lawyer who is not in
the same firm.7

* Disclose a client confidence or secret.
* Continue to represent a client even if the
8

lawyer has a personal or other conflict under
Rule 1.7(b).9

* Enter into a business transaction with a
client.10

* Accept compensation for representing a
client from one other than the client.11

* Make an aggregate settlement of claims for

or against multiple clients represented by the
lawyer, or enter into an aggregate plea agreement in a criminal case.12

* Represent a client in a matter adverse to the

interests of a former client where the current
matter is the same as, or substantially related
to, the matter in which the lawyer represented the former client.13

* Represent a client in connection with a

prospective client in the same or a substantially related matter.16

* Provide an evaluation of a matter to a third
person who is likely to adversely affect the
client.17

* Report another lawyer to the D.C. Bar for an
ethics violation when doing so involves the
disclosure of a client confidence or secret.18

In conclusion, a lawyer's ethical duty will
always supersede any contractual agreement
between lawyer and client to the contrary. As
such, a lawyer may not rely upon the client's
informed consent to act contrary to a Rule
unless it expressly so permits.
NOTES

1 It is important to remember that the D.C.
Court of Appeals has adopted the D.C. Rules of
Professional Conduct, not the ABA Model Rules,
and that there are any number of instances
where the D.C. Rules differ from the ABA Rules.
See, e.g., "D.C. Is Different" ("Speaking of Ethics,"
Washington Lawyer, March 2015).
2 See Rules 1.5(a)(7) and (a)(2), respectively.
3 Pursuant to Rule 1.0(n), "tribunal" denotes not
only a court, but also "an arbitrator in a binding
arbitration proceeding, or a legislative body,
administrative agency or other body, acting in
an adjudicative capacity."
4 670 A.2d 375 (D.C. 1996).
5 This seminal principle is cited with approval by
the Legal Ethics Committee in LEO 374.
6 749 A.2d 1264, 1268 (D.C. 2000).
7 Rule 1.5(e). There are additional terms that must
be satisfied before a lawyer may divide a fee in
this manner.
8 Rule 1.6(e)(1).
9 Rule 1.7(c)(1). The lawyer would also have to
undertake both an objective and subjective test
to ensure "that the lawyer will be able to provide
competent and diligent representation to each
affected client." Rule 1.7(c)(2).
10 Rule 1.8(a). The informed consent must be in
writing, and there are other terms that must be
satisfied.
11 Rule 1.8(e). There are other terms that must be
satisfied under the Rule.
12 Rule 1.8(f). The informed consent by each client
must be in writing.

matter in which the lawyer participated personally and substantially as an arbitrator,
mediator, or third-party neutral.14

13 Rule 1.9.

unincurred costs in the lawyer's operating
account.15

15 Rule 1.15(e). See also LEO 355; In re Mance, 980
A.2d 1196 (D.C. 2009).

* Keep client's advances of unearned fees and
* In the case of a lawyer who has received con-

fidential information from a prospective
client, represent another client adverse to the

14 Rule 1.12(a).

16 Rule 1.18(d)(1).
17 Rule 2.3(b).
18 Rule 8.3.

NOVEMBER/DECEMBER 2020

WASHINGTON LAWYER

Washington Lawyer - November/December 2020

Table of Contents for the Digital Edition of Washington Lawyer - November/December 2020