Volume 35

How Notions of Professional Independence Constrain Lawyers

by Mikki Weinstein

In November 2020, the D.C. Bar Rules of Professional Conduct Review Committee (“the D.C. Bar Committee”) issued a set of proposed changes to the D.C. Rules of Professional Conduct (“D.C. Rules”). These changes were meant to address client-generated engagement letters and outside counsel guidelines dictating the terms of relationships with counsel. These changes included five general amendments meant to ensure greater lawyer independence. As laid out in the Bar Committee’s draft report, the proposed amendments would: Amend Rules 1.7 and 5.6 to remove the . . . open-ended permission for a lawyer and client to expand the scope of what constitutes a conflict of interest under the D.C. Rules, except where broader coverage is required by other law;  Amend Rule 1.8 to prohibit a lawyer from proposing or accepting conditions that impose liability on a lawyer that is broader than the liability imposed by statute or common law; Amend Rule 1.16 to make clear that a lawyer may retain copies of client files, including the lawyer’s work product, but may not use that work product in other matters if the Rules’ confidentiality provisions prohibit such use; Amend Rule 1.6 to make clear that a lawyer is not only permitted, but obligated, to use general (i.e., not client-specific) knowledge gained in the course of a representation for the benefit of subsequent clients; and  Amend Rule 1.16 to provide that where a lawyer has agreed that her client may make unilateral changes in the terms of a representation, the lawyer may withdraw if the client makes a material change to which the lawyer is unwilling to assent.

These provisions were suggested in tandem and purport to have the same objectives. However, they do not seem cohesive. The first proposed amendment, limiting a client and lawyer’s ability to expand or contract the definition of conflict of interest, stands in contrast to the third, which protects the lawyer’s ability to benefit from their own work product. The third proposed amendment is an example of a reasonable suggestion that serves to protect lawyers and their choices even after the formal part of their relationship with a client ends. The third is an appropriate recommendation that increases lawyers’ power of choice. The first proposal, on the other hand, goes too far, serving to restrict lawyerly discretion. The D.C. Bar Committee’s explicit aim behind these proposed amendments is to “allow[] clients and lawyers latitude to contract with one another as they see fit,” balanced by a desire to “protect[] essential elements of the practice of law.” Giving lawyers “open-ended permission” to determine the parameters of their relationships with their clients is the embodiment of lawyer autonomy.

Though overblown definitions of conflicts of interest are not good for the legal profession in theory, lawyers are the best equipped to determine the terms they are comfortable with. It is within a lawyer’s job description, after all, to assess contracts and determine legality and fairness. Restricting a lawyer’s ability to do so through this amendment is a means of narrowing attorney autonomy under the guise of protecting the field. In reality, the D.C. Bar Committee never explains what it means by “independence” and so proposes rules with no clear perspective or specific intention.

This Note will proceed in four parts. Part I will introduce the D.C. Bar’s proposed rule changes and place it in the context of the D.C. Bar’s existing Rules of Professional Conduct. Part II will provide an overview of the different conceptions of the professional independence of lawyers and the relationship of the D.C. Bar to this value. Part III will examine the increasing prevalence of outside counsel guidelines and point out some misconceptions about them that may have led to the D.C. Bar’s proposed rule. Finally, Part IV will discuss why, considering Parts I through III, the D.C. Bar’s proposed rules are ill-advised.


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